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GIFT  OF 


REMARKS  ON  THE  ARBITRAL  SENTENCE 


lounced  by  the  President  of  the  Argentine  Republic  on  July  9,   1909 


ON  THE 


BOUNDARY  QUESTION 


BETWEEN 


BOLIVIA  AND  PERU 


By  PASQUALE  FIORE 

Member  of  the  Council  for  Diplomatic  Contentions  and  of  the  Institute  of  International  Law, 
Senator  of  the  Kingdom  of  Italy 


Translated  from  the  French  by 

FANNY  R.   BANDELIER 


From  the 

REVUE  GENERALE  DE  DROIT  INTERNATIONAL  PUBLIC 

NEW  YORK 


REMARKS  ON  THE  ARBITRAL  SENTENCE 


Pronounced  by  the  President  of  the  Argentine  Republic  on  July  9,   1909 


ON  THE 


BOUNDARY  QUESTION 


BETWEEN 


BOLIVIA  AND  PERU 


By  PASQUALE  FIORE 

iber  of  the  Council  for  Diplomatic  Contentions  and  of  the  Institute  of  International  Law, 
Senator  of  the  Kingdom  of  Italy 


Translated  from  the  French  by 

FANNY  R.   BANDELIER 


From  the 

RclVUE  GENERALE  DE  DROIT  INTERNATIONAL  PUBLIC 

NEW  YORK 


tn 

OBSERVATIONS 


REMARKS  UPON  THE  ARBITRAL  SENTENCE  REN- 
DERED BY  THE  PRESIDENT  OF  THE  ARGENTINE 
REPUBLIC  ON  JULY  9,  1909,  IN  THE  CONFLICT 
BETWEEN  THE  REPUBLIC  OF  BOLIVIA  AND  THAT 
OF  PERU  IN  THE  MATTER  OF  DEMARCATION  OF 
THE  BOUNDARY  BETWEEN  THE  TWO  STATES. 


Arbitration  has  become  one  of  the  most  important  juridical 
institutions  for  disposing  of  international  conflicts  and  giving  satis- 
faction to  the  aspirations  of  those  who  endeavor  to  settle  differences 
between  States  without  hurting  their  respective  dignity,  by  removing 
the  causes  of  ill-feeling  that  might  occasionally  jeopardize  their 
peaceful  relations. 

All  who  comprehend  its  importance  and  practical  efficiency  ac- 
knowledge that  in  order  to  better  enable  arbitration  to  attain  its 
purpose  it  must  be  useful  to  secure  for  it  a  regular  working.  It 
must  therefore  be  considered  as  opportune,  not  only  to  place  in  evi- 
dence its  undeniable  advantages  but  also  to  indicate  the  incon- 
veniences which  might  result  from  the  administration  of  arbitral 
Justice,  in  order  to  prevent  their  recurrence  and  thus  render  in 
future  the  functioning  of  this  judicial  method  more  perfectly. 

Having  been  invited  to  express  our  opinion  on  the  sentence  of 
arbitration  rendered  by  the  President  of  the  Argentine  Republic 
in  the  controversy  between  Bolivia  and  Peru,  we  have  concluded  to 
do  it  with  the  view  of  presenting  an  impartial  study  of  that  arbi- 


240984 


tration  and  of  investigating  if  the  principles  of  international  law 
that  in  our  understanding  should  always  preside  over  the  adminis- 
tration of  arbitral  Justice,  have  been  rigorously  observed.  Our  re- 
marks will  not  be  in  the  least  based  upon  the  preconceived  idea  of 
criticizing  or  of  favoring  the  manifestation  of  certain  sentiments  that 
have  revealed  themselves  in  regard  to  that  sentence.  Far  be  it  from 
us  to  forget  the  respect  due  in  principle  to  the  decisions  of  the  arbi- 
trating authority  destined  to  settle  definitively  all  disputes,  nor  to 
perpetuate  the  discussion  of  facts  which  may  have  given  rise  to  the 
said  decisions.  We  belong  to  the  class  of  authors  that  have  devoted 
and  do  devote  their  existence  to  the  consolidation,  in  international 
society  the  preponderating  rule  of  Right,  and  only  in  the  quality 
of  a  modest  writer  do  we  propose  to  submit  our  observations  in  the 
hope  of  contributing  as  much  as  we  may  be  able  to  do  toward  an 
improvement  in  the  exercise  of  arbitral  Justice,  increase  its  growing 
prestige  and  enable  it  to  attain  more  securely  the  aim  which  it  must 
have  in  view. 

Under  these  premises  our  remarks  may  be  regarded  as  the  work 
of  a  Jurisconsult  expressing  his  opinion  on  decisions  rendered  by 
high  juridic  authorities.  It  cannot  be  sufficient  that  Justice  be  just, 
it  must  also  appear  as  solidly  based  upon  the  just  principles  of  Law. 
Thus  it  must  be  with  arbitral  Justice,  so  that  its  sentence  will  not 
merely  terminate  litigation,  but  that  it  may  have  indisputable  moral 
value.  It  is  always  through  critical  observations  on  the  sentences  of 
the  highest  courts  that  progressive  development  of  justice  is  attained. 
It  lies  beyond  all  doubt  that  these  high  authorities  whose  sentences 
are  discussed  in  complete  scientific  independence,  cannot  find  in  that 
anything  that  might  affect  their  dignity  or  diminish  their  prestige. 
Thus,  at  the  present  time,  while  we  write  these  lines,  a  profound 
discussion  is  carried  on  in  the  juridic  circles  of  Naples  to  critically 
examine  an  important  sentence  pronounced  by  the  Court  of  Appeals 
of  Rome  with  the  attendance  of  all  its  sections,  on  a  question 
already  discussed  extensively  in  the  courts  of  Italy,  as  to  whether  the 
excess  in  value  of  stocks  issued  by  an  anonymous  society  is  liable  to  a 


revenue  tax  like  all  industrial  income.  The  decision  of  the  High 
Court  of  Justice  has  been  vigorously  combated  and  criticized,  never- 
theless, none  of  the  members  of  that  court  has  found  in  those  criti- 
cisms anything  derogatory  to  his  dignity  or  prestige. 

In  the  above  it  has  been  our  purpose  to  indicate  that  critical 
remarks  on  the  sentences  of  tribunals  of  arbitration,  if  impartial, 
cannot  have  the  effect  of  impairing  the  importance  or  efficiency  of 
the  arbitration  destined  to  satisfy  the  aspirations  of  friends  of 
peace  who  look  to  it  as  the  institution  best  adapted  for  the  settle- 
ment of  international  conflicts.  We  have  also  wanted  to  demon- 
strate that  these  observations  can  in  no  manner  affect  the  dignity  of 
the  arbiter  from  whom  the  sentence  emanates. 

The  remarks  we  purpose  to  make  can  in  no  manner  offend  the 
high  personality  of  the  President  of  the  Argentine  Republic,  nor 
lead  to  suspect  his  indisputable  impartiality  as  judge.  We  profess 
the  highest  respect  for  the  exalted  magistracy  of  the  arbiter  and 
regard  as  beyond  discussion  the  exalted  sentiments  of  Justice  that 
inspire  him  in  ultimately  solving  and  settling  the  dispute  between 
Bolivia  and  Peru,  hence  we  simply  propose  to  formulate  objective 
criticisms,  in  the  general  interest,  of  a  better  functioning  of  arbitral 
Justice,  as  jurists  who  desire  to  co-operate  to  an  improved  admin- 
istration of  national  Justice. 

FACTS 

On  the  21st  of  November,  1901,  Bolivia  and  Peru  concluded, 
at  La  Paz,  a  general  treaty  of  arbitration,  by  which  they  agreed  on 
principle,  by  Article  1,  to  submit  to  arbitration  all  differences  exist- 
ing and  hereafter  to  come  up,  of  whatever  origin  and  nature,  and 
they  also  have  determined  the  general  rules  after  which  the  arbi- 
trage is  to  be  affected. 

Art.  2  of  that  convention  disposes : 

Art.  2. — If  the  case  should  present  itself,  the  contracting  parties 
will  conclude  a  special  convention  for  determining  the  nature  of  the 


disagreement,  to  fix  the  points  to  be  settled,  the  extent  of  the  facul- 
ties of  the  arbiter  and  the  procedure  to  be  observed. 

The  High  Contracting  Parties  have  determined  the  functions  of 
the  arbiter  in  Articles  7  and  8  in  which  his  competency  is  precised 
and  which  read  as  follows : 

Art.  7. — On  the  questions  of  a  technical  or  scientific  character 
that  will  come  up  in  the  course  of  this  litigation,  the  arbiter  is  under 
the  obligation  to  ask  for  the  advice  of  the  Royal  Geographical  So- 
ciety of  London  or  of  the  International  Geodetic  Institute  of  Berlin. 

Art.  8. — The  arbiter  shall  pronounce  in  strict  conformity  with 
the  prescriptions  of  international  law  and,  in  the  matter  of  boun- 
daries, to  the  American  principle  of  uti  possidetis  of  1810,  when- 
ever the  convention  referred  to  in  Article  2  does  not  establish  special 
rules  or  does  not  authorize  the  arbiter  to  pronounce  in  the  quality  of 
a  friendly  intermediary. 

In  conformity  with  this  general  agreement  Bolivia  and  Peru 
executed  at  La  Paz  the  special  convention  of  December  11,  1902, 
for  the  purpose  of  settling  their  dispute  about  the  limitation  of  their 
respective  territories. 

This  convention  reads  as  follows : 

Art.  1. — The  High  Contracting  Parties  submit  to  the  judgment 
and  decision  of  the  Government  of  the  Argentine  Republic,  in  the 
quality  of  arbitral  "Judge  of  Law,"  the  question  of  boundaries 
pending  between  the  two  Republics  of  Bolivia  and  Peru,  in  order  to 
obtain  by  it  a  sentence,  definitive  and  without  appeal,  according  to 
which  the  entire  area  which,  in  1810,  pertained  to  the  jurisdiction 
or  district  of  the  former  AUDIENCIA  of  CHARCAS,  within  the 
limits  of  the  viceroyalty  of  Buenos  Ayres  according  to  the  decrees 
of  the  former  sovereign,  the  King  of  Spain — shall  belong  to  the 
Republic  of  Bolivia  and  all  the  territory  that,  at  the  same  date  and, 
according  to  the  enactment  of  the  same  sovereign,  pertained  to  the 
viceroyalty  of  Lima,  shall  revert  to  the  Republic  of  Peru. 

Art.  2. — The  treaty  of  September  23d  of  the  current  year  hav- 
ing regulated  the  demarcation  and  bounding  of  the  frontier  that 


begins  between  the  Peruvian  provinces  of  ARICA  and  TACNA 
and  the  Bolivian  province  of  CARANGAS  on  the  West  to  the 
glaciers  of  PALOMANI — that  section  is  not  included  in  the  pres- 
ent treaty. 

Art.  3. — In  order  to  pronounce  sentence  the  arbiter  shall  adhere 
to  the  laws  in  the  "Recopilacion  de  Indias,"  to  the  royal  decrees 
and  ordinances,  Ordinances  of  the  Intendentes,  to  the  diplomatic 
documents  concerning  the  outlining  of  boundaries,  to  the  official 
maps  and  descriptions  and,  in  general,  to  all  official  documents 
issued  in  order  to  furnish  the  true  bearing  of  and  to  enable  the 
execution  of  the  royal  dispositions  aforesaid. 

Art.  4. — Whenever  the  legal  enactments  or  dispositions  should 
not  clearly  define  the  domain  of  a  territory,  the  arbiter  shall  solve 
the  question  in  an  equitable  manner,  adhering,  as  far  as  possible,  to 
the  bearings  of  these  documents  and  to  the  spirit  that  may  have 
inspired  them. 

Art.  5. — Possession  of  a  territory  by  one  of  the  High  Contract- 
ing Parties  cannot  militate  against  the  titles  or  royal  acts  which 
would  establish  the  contrary,  nor  can  it  prevail  against  them. 

Art.  6. — The  High  Contracting  Parties  shall,  as  soon  as  the 
ratifications  of  this  present  treaty  have  been  exchanged,  simultane- 
ously solicit  from  the  Argentine  Government,  by  means  of  their 
Envoys  Extraordinary  and  Plenipotentiaries  to  accept  the  charge  of 
arbiter,  assuming  the  jurisdiction  through  the  cognizance,  investi- 
gation and  resolution  of  the  controversy  and  establish  the  procedure 
to  be  followed  or  observed. 

Art.  7. — One  year  after  the  acceptance  of  the  charge  has  been 
communicated,  the  said  diplomatic  representatives  shall  present 
their  informations  exposing  the  rights  of  their  respective  States  and 
shall  produce  the  documents  supporting  them  and  upon  which  they 
are  based. 

Art.  8. — The  aforesaid  diplomatic  agents  shall  be  the  legal  repre- 
sentatives of  their  governments  with  all  faculties  requisite  for  re- 
ceiving and  presenting  allegations  and  answering  the  same,  offering 


evidence,  presenting  and  developing  annexes,  furnishing  all  data 
that  might  explain  rights  under  discussion  and  finally,  for  following 
the  litigation  to  its  end. 

Art.  9. — Once  the  sentence  rendered  it  shall  be  carried  out 
definitively  through  the  fact  of  having  been  brought  to  the  knowl- 
edge of  the  said  Envoys  Extraordinary  and  Ministers  Plenipoten- 
tiary of  the  High  Contracting  Parties.  From  that  time  on,  the 
territorial  delimitation  will  be  held  as  definitive  and  binding  between 
the  two  Republics. 

Art.  10. — In  regard  to  what  is  not  specially  established  by  this 
treaty,  the  one  of  November  21,  1901,  shall  remain  in  force. 

Art.  11. — After  this  treaty  has  been  approved  and  ratified  by 
the  governments  of  both  countries,  its  ratifications  shall  be  ex- 
changed without  delay  at  LA  PAZ  or  at  LIMA. 

(Signed)    ELIODORO  VILLAZON. 
FELIPE  DE  OSMA. 

This  treaty,  approved  by  the  National  Government  of  Bolivia 
at  LA  PAZ  on  November  11,  1903,  was  ratified  there  on  January 
14,  1904. 

The  Argentine  Government  was  solicited  to  that  effect  by  the 
respective  Plenipotentiaries  of  both  Republics,  who  communicated 
to  it  the  compromise  of  December  30,  1902,  to  accept  the  functions 
of  arbiter.  His  Excellency  the  President  of  the  Argentine  Republic 
consented  to  accept,  in  order  to  render  thus  a  new  service  to  the 
cause  of  peace,  and  his  acceptance  was  notified  to  the  Plenipoten- 
tiaries of  the  two  contending  States  on  July  30,  1904. 

The  President  thus  legally  invested  with  the  functions  of 
arbiter,  in  this  quality  appointed,  by  his  decree  of  October  20, 
1904,  a  Commission  destined  to  assist  him  in  his  arbitration. 

This  consulting  Commission  fulfilled  its  mission  by  examining 
all  the  allegations,  replies  and  counter  replies,  documents  and  all  the 
evidence  produced  by  each  of  the  two  parties  and,  considering  its 
mission  as  thereby  fulfilled,  submitted  to  the  President  in  a  note 

8 


dated  June  1,  1909,  and  addressed  to  the  Minister  of  Foreign 
Affairs  of  the  Argentine  Republic,  the  following  project  relative 
to  the  line  of  demarcation. 

This  note  reads  as  follows : 

"MR.  MINISTER. 

"In  the  various  meetings  held  with  His  Excellency  the  President 
of  the  Republic  and  with  Your  Excellency  for  the  purpose  of 
deliberating  on  the  question  of  boundaries  pending  between  Peru 
and  Bolivia  and  submitted  to  the  Argentine  Government  for 
arbitration,  we  have  had  ample  opportunity  to  state  the  reasons 
which  impede  the  adoption  of  either  one  of  the  boundary  lines 
upheld  by  the  High  Parties  in  litigation. 

"The  written  allegations,  replies  and  criticisms  presented  by  the 
Ministers  of  the  two  Republics  in  support  of  their  respective  doc- 
trines, however  erudite  and  remarkable  for  their  historic  and 
juridic  value,  have  placed  the  discussion  at  the  high  level  to  which 
it  is  entitled,  and  allows  the  analysis  of  the  basis  on  which  they 
rest,  with  the  abundance  of  data  that  are  necessary  for  forming 
definitive  judgment. 

"Having  studied  them  we  have  reached  the  conclusion  that  the 
law  embodied  in  the  'Recopilacion  de  Indias,'  the  royal  decrees 
and  edicts,  the  Ordinances  of  Intendentes,  the  diplomatic  acts 
relating  to  the  demarcation  of  boundaries,  the  maps  and  official 
descriptions  and,  in  general,  the  official  documents  issued  for  giving 
to  these  enactments  their  scope  and  for  effecting  their  execution, 
do  not  define  the  domain  of  these  territories  in  litigation  in  a  clear 
and  precise  manner,  so  that  the  Argentine  Government  in  con- 
formity with  Article  4  of  the  treaty  of  arbitration,  the  ratifications 
of  which  were  exchanged  at  LA  PAZ  on  March  9,  1904,  will 
have  to  resolve  the  question  in  equity  by  adhering,  as  much  as  pos- 
sible, to  the  intentions  of  all  these  elements  and  to  the  spirit  that 
may  have  inspired  them. 

"Considerations  de  facto  and  de  jure  which  we  have  extensively 
exposed  to  His  Excellency  the  President  and  to  Your  Excellency, 


lead  us  to  think  that  the  line  most  adapted  to  these  conditions  and 
most  in  accordance  with  the  antecedents  of  the  debate  is  the  fol- 
lowing: (Here  follows  the  identical  designation  of  the  arbitral 
sentence  in  which  it  is  textually  reproduced.)  ^ 

"Basing  upon  these  considerations  we  must  understand  that  the 
line  indicated  can  be  regarded  as  the  one  approaching  the  division 
line  which,  in  1310,  divided  the  jurisdiction  and  district  of  the 
former  Audiencia  de  Charcas  within  the  viceroyalty  of  Buenos 
Ayres  and  of  the  jurisdiction  of  the  viceroyalty  of  Lima  and,  in 
fulfillment  of  the  mission  entrusted  to  us  by  decrees  of  October  20, 
1904,  and  December  13  and  27,  1908,  we  recommend  to  the  Gov- 
ernment of  Your  Excellency  to  sanction  it,  as  boundary  between 
the  Republics  of  Bolivia  and  of  Peru  in  order  to  put  an  end  to  the 
transcendental  controversy  concerning  the  boundary  of  these  two 
nations." 

Before  the  arbitral  sentence  had  been  pronounced  Mr.  Escalier. 
Plenipotentiary  of  Bolivia,  by  his  note  of  July  6,  1909,  requested 
that  the  question  be  studied  in  situ,  in  order  to  verify  the  condition 
of  the  territories,  the  population  inhabiting  them,  and  all  that  might 
be  useful  to  protect  the  moral  and  economical  interest  involved 
in  the  delimitation  of  the  territories  between  the  two  Republics. 
This  request  was  not  considered  since  it  was  admitted  that,  if  the 
Commission  had  judged  it  useful,  it  would,  of  its  own  accord,  have 
decreed  the  measure  thus  solicited.  Finally,  the  President  of  the 
Argentine  Republic  rendered  the  sentence,  the  text  of  which  is  as 
follows : 

ARBITRAL   SENTENCE 
OF   THE    ARGENTINE    GOVERNMENT 

Joseph  Figueroa  Alcorta,  President  of  the  Argentine  Nation : 
The  Government  of  the  Argentine  Republic  having  been  named 
Arbiter  and  Judge  in  law  to  decide  the  boundary  question  pending 
between  the  Republics  of  Bolivia  and  Peru  according  to  the  treaty 

10 


of  arbitration  celebrated  at  the  city  of  La  Paz  on  December  30, 
1902,  and 'exchanged  at  that  city  May  9,  1904. 

Desirous  of  justifying  the  confidence  thus  placed  in  this  Govern- 
ment by  the  aforesaid  Republics,  which  are  so  intimately  connected 
with  the  Argentine  through  their  origin,  traditions  and  destinies  and 
having  appointed  a  Commission  of  assessors  actually  composed  of 
Dr.  Antonio  Bermejo,  President  of  the  Supreme  Court  of  this 
nation,  one-time  Minister  of  Justice  and  Public  Instruction  and 
former  Plenipotentiary  to  the  American  International  Conference 
of  Mexico;  of  Dr.  Manuel  Augustus  Montes  de  Oca,  former  Min- 
ister of  Foreign  Affairs,  and  ex-Assessor  of  the  Argentine  Govern- 
ment in  the  arbitration  between  Chile  and  the  Argentine;  and 
Dr.  Carlos  Rodriguez  Larreta,  one-time  Minister  of  Foreign  Af- 
fairs, ex-Plenipotentiary  to  the  Second  Peace  Conference  and  mem- 
ber of  the  Permanent  Court  of  Arbitration  of  The  Hague;  Secre- 
tary, Dr.  Horacio  Beccar  Varela.  This  Commission  was  to  deter- 
mine the  mode  of  procedure  to  be  followed,  receive  the  memoirs, 
pleadings  and  testimony  of  the  High  Contracting  Parties  and  assist 
the  arbiter  in  the  solution  of  the  question  of  boundaries  submitted 
to  his  decision. 

In  view  of:  that  this  Commission  after  conferring  with  the 
Ministers  representing  Peru  and  Bolivia,  established  the  rules  of 
procedure  to  be  followed  and  that,  in  conformity  with  these  rules 
were  presented  the  various  pleadings,  replies,  proofs,  all  carefully 
studied  by  the  Commission. 

In  view  of :  that  according  to  the  defense  presented  by  Bolivia 
the  dividing  line  should  be  the  following : 

Starting  from  the  South  on  the  river  Suchez,  the  line  runs  across 
the  lake  of  the  same  name  its  entire  length  and  rises  on  the  Cor- 
dillera by  Palomanitranca  and  by  Palomanicunca  to  the  summit  of 
that  name  which  is  the  highest  of  the  glaciers  of  that  region — then 
descends  to  the  eastern  slope  by  the  boundaries  of  Yagua-Yagua, 
Huajza  and  Lurirni  which  define  the  possessions  of  the  two  Re- 
publics. Then  it  follows  the  boundary  of  Hichocorpa,  in  the  moun- 

11 


tain  chain  thus  called,  and  descends  again,  by  the  river  Corimayo  to 
the  river  San  Juan  del  Oro  or  Tambopata  and  beyond  that  stream 
to  the  confluence  of  the  river  Lanza.  From  that  point,  the  line  goes 
to  the  mouth  of  the  Chunchusmayo  at  its  confluence  with  the  river 
Inambari  and  then  descends  by  it  to  its  junction  with  the  Marcopata. 
It  thence  rises  on  this  river  to  the  frontier  of  the  ancient  province  of 
Paucartambo  and  along  these  limits  to  the  place  knowrn  in  colonial 
times  by  the  name  of  Opotari  at  the  junction  of  the  rivers  Zono  and 
Pinipini.  Continuing  by  the  boundaries  of  the  province  of  Uru- 
bamba  and  by  the  river  Janatili,  the  line  penetrates  into  the  Uru- 
bamba  river  the  course  of  which  it  follows  to  its  junction  with  the 
Ucayali,  whence  it  goes  to  the  slope  of  the  Yavari  along  the  right 
bank  of  this  stream. 

In  view  of:  that  the  defense  of  Peru  resumes  the  claims  of  that 
State  in  the  following  manner : 

(1)  In  1810  the  Audiencia  of  Charcas  in  the  viceroyalty  of 
Buenos  Ayres  comprised,  in  what  pertains  to  the  question  now 
under  our  consideration,  from  the  point,  where,  according  to  the 
treaty  of  September  23,  1902,  the  demarcation  of  the  Peru-Bolivian 
frontier  is  to  terminate,  by  the  line  dividing  the  waters  of  the  rivers 
Tambopata  and  Tuiche  to  the  sources  of  the  river  Madidi  following 
that  stream  to  its  confluence  with  the  Beni  and  thence  eastward  to 
meet  the  river  of  the  Exaltation  Iruyani,  the  course  of  which  and 
that  of  the  Mamore  to  the  mouth  of  the  Guapore  or  Iteneez  were 
the  terminal  points  of  the  lines  of  demarcation. 

(2)  The  territories  north  and  northeast  of  that  line  as  far  as 
the  frontier  of  Portugal  pertained  to  the  viceroyalty  of  Peru  in 
1810.     (See  Statement  of  the  Republic  of  Peru,  Vol.  I,  p.  259.) 

In  consideration  of  that  the  High  Contracting  Parties,  accord- 
ing to  Art.  I  of  the  treaty  of  arbitration,  submit  to  the  decision  of 
the  Government  of  the  Argentine  Republic  as  arbiter  and  lawful 
Judge,  the  question  of  boundaries  between  the  two  Republics  in  order 
to  obtain  a  sentence,  definitive  and  without  appeal,  according  to 
which  the  entire  territory  that  in  1810,  pertained  to  the  jurisdiction 

12 


of  the  ancient  Audiencia  of  Charcas,  within  the  limits  of  the  vice- 
royalty  of  Buenos  Ayres  through  the  enactments  of  the  former  sov- 
ereign— be  declared  to  pertain  to  the  Republic  of  Bolivia  and  that 
all  the  territory  which,  at  the  same  date  and  by  the  enactments  of 
the  same  sovereign  pertained  to  the  viceroyalty  of  Lima,  should  be 
assigned  to  the  Republic  of  Peru. 

Considering  that,  interpreting  this  article  relative  to  the  compe- 
tency of  the  arbiter  according  to  the  faculties  admitted  by  interna- 
tional law  (see  Conventions  for  the  peaceable  settlement  of  inter- 
national conflicts  adopted  by  the  Congresses  of  The  Hague,  1899- 
1907,  Art.  48  of  the  first  and  75  of  the  second,  also  Calvo  Droit 
International,  Vol.  Ill,  1857),  it  must  be  understood  to  mean  that 
the  High  Contracting  Parties  have  given  the  faculty  of  fixing  the 
division  line  between  the  Audiencia  of  Charcas  and  the  viceroyalty 
of  Lima  in  1810  only  in  regard  to  the  respective  territorial  right, 
because,  if  he  ought  to  determine  the  whole  perimeter  of  each  of 
these  colonial  entities,  it  might  affect  the  rights  of  various  nations 
which  are  not  concerned  in  the  arbitral  compromise  of  1902,  basis 
of  the  present  judgment.  Besides  this,  Article  9  of  the  treaty  states 
that  once  the  sentence  pronounced  and  notified  to  the  Envoys  Ex- 
traordinary and  Ministers  Plenipotentiaries  of  the  High  Contract- 
ing Parties,  the  territorial  delimitation  of  right  between  the  two 
Republics  shall  be  held  as  definitive  and  obligatorily  established, 
which  expresses  clearly  that  it  is  the  demarcation  (territorial)  be- 
tween the  two  Republics  which  is  to  be  determined. 

Considering  that,  in  accordance  with  Article  2  of  the  treaty  of 
arbitration,  modified  according  to  terms  of  the  minutes  of  exchange 
of  ratifications  dated  La  Paz,  the  9th  of  March,  1904,  the  arbiter 
finds  himself,  in  regard  to  the  determination  of  the  division  line, 
in  the  presence  of  a  point  of  departure  expressly  signalled  to  wit: 
"the  place  where  the  actual  boundary  line  coincides  with  river 
Suchez  according  to  the  following  terms  of  Art.  2  of  the  treaty  of 
arbitration,  completed  by  the  minutes  of  the  exchange  before 
mentioned." 

13 


Art.  2. — "The  treaty  of  the  23d  of  September  of  the  present  year 
having  settled  the  demarcation  and  the  setting  of  landmarks  of  the 
frontier  which  begins  between  the  Peruvian  provinces  of  Tacna  and 
Arica  and  the  Bolivian  province  of  Carangas  in  the  West  to  the  site 
where  the  actual  frontier  line  coincides  with  the  river  Suchez  this 
section  is  excepted  from  the  treaty." 

Considering  that  the  arbiter,  after  having  studied  with  the  ut- 
most attention  the  invoked  titles  of  one  and  the  other  party,  does 
not  find  enough  grounds  to  consider  as  dividing  line  between  the 
Audiencia  of  Charcas  and  the  viceroyalty  of  Lima  in  1810,  neither 
one  or  the  other  of  the  demarcations  pretended  by  the  defenses  of 
the  States  who  have  signed  the  compromise. 

Considering  that,  in  reality,  the  disputed  zone  was  in  1810  and 
until  recently,  completely  unexplored,  as  it  appears  by  the  numerous 
geographical  maps  of  the  colonial  period  as  well  as  from  posterior 
ones  presented  by  one  and  the  other  party  and  recognised  by  both; 
which  explains  that  the  demarcations  of  these  governmental  entities 
(the  viceroyalty  and  the  Audiencia) ,  subject  to  the  same  sovereign, 
had  not  been  perfectly  determined. 

The  defense  of  Bolivia  acknowledges  it  when,  indicating  the 
successive  modifications  in  the  frontiers  of  the  principal  colonial 
sections,  it  expresses  that :  "during  this  long  process,  which  lasted 
more  than  three  centuries,  one  perceives  frequently  that  the  dis- 
positions of  the  Spanish  Crown  have  been  contradictory,  vague 
some  of  them  and  many  in  disagreement  with  the  position  of  the 
places  and  topographical  features.  This  was  due  to  the  lack  of  geo- 
graphical knowledge  and  therefore  the  interpretation  must  be  equi- 
table within  the  frame  of  the  ideas  of  the  period,  in  order  to  appre- 
ciate the  true  signification  and  bearing  of  these  dispositions;  al- 
though it  adds:  that  with  regard  to  the  district  of  the  Audiencia  of 
Charcas,  the  royal  orders  and  dispositions  were  more  precise  (Me- 
morial presented  by  Bolivia,  p.  2) . 

In  its  turn,  the  defense  of  Peru,  entering  upon  the  study  of  the 
principles  upon  which  the  demarcation  of  the  Audiencias  is  founded, 

14 


says :  "that  the  eastern  territories,  which  are  the  object  of  this  liti- 
gation, territories  ignored  and  unconquered  during  the  entire  colo- 
nial period,  could  not  be  included  or  excluded  from  any  inferior 
and  subaltern  Audiencia."  (Memorie  du  Perou,  t.  1,  p.  77.)  Fur- 
ther on  it  adds,  "Circumspection  and  honorability  consist  here  in  pre- 
senting the  title  of  the  disputed  domains,  considered  as  a  whole  uti 
nniversitas,  and  to  produce  thereof  the  documents  which  allow  the 
arbiter  to  create  a  juridic  demarcation  and  also  geographically  'pru- 
dent.' "  (Memoirs  d'observations  et  censures  du  Perou,  p.  104.) 

Considering  that  the  demarcation  sustained  in  this  litigation  by 
the  defense  of  Bolivia,  in  following  the  course  of  the  rivers  Cori- 
mayo,  San  Juan  del  Oro  or  Tambopata,  Inambari,  Yanatile,  Uru- 
bamba  and  Ucayali  as  far  as  the  sources  of  the  Yavari,  had  been 
indicated  previously  as  a  straight  line  that,  starting  from  the  said 
sources  of  the  Yavari  reached  as  far  as  the  confluence  of  the  Inam- 
bari with  the  river  Madre  de  Dios  (Notes  du  5  Mai  1894  et  du  23 
Octobre  1902,  dans  les  annexes  de  la  Republique  de  Bolivie,  pp.  26 
et  36;  Protocole  Polar  Gomez  du  21  Mai  1877;  whereas  Peru 
which,  in  this  litigation  traces  the  line  along  the  rivers  Madicli, 
Beni  and  Mamore,  and  formerly  fixed  it  by  the  rivers  Tequeje  and 
Beni  to  its  reunion  with  the  Mamore.  (Note  de  la  legation  du 
Perou,  datee  a  La  Paz  le  10  Novembre  1902,  dans  les  Annexes  de 
Bolivie,  p.  40.)  t 

Considering  that  these  differences  explain  themselves  perfectly, 
if  one  takes  into  account  as  the  treaty  of  arbitration  of  the  30th  of 
December  foresaw  it,  and  as  it  follows  the  notable  works  presented 
by  the  two  parties  to  the  assessorial  commission,  that  the  royal  acts 
and  dispositions  in  vigor  in  1810  did  not  define  clearly  if  the  dis- 
puted territory  had  been  assigned  to  the  jurisdiction  of  the  vice- 
royalty  of  Lima  or  to  the  Audiencia  of  Charcas,  two  colonial  en- 
tities subject  to  the  same  undoubted  sovereign  of  these  territories 
and  that,  until  1776,  the  second  constituted  a  part  of  the  first. 

To  understand  it,  it  suffices  to  note  besides  the  Laws  in  the 
"Recopilacion  de  Indias"  indicated  as  the  first  element  of  decision 

15 


in  Article  3  of  the  treaty  of  arbitration,  bounded  the  "Audiencia  of 
Charcas"  :  "In  the  North  by  the  Royal  Audiencia  of  Lima  and  undis- 
covered provinces,  in  the  South  by  the  Royal  Audiencia  of  Chile, 
and  in  the  East  and  West  by  the  Atlantic  and  Pacific  Oceans,  and 
the  boundaries  between  the  crowns  of  Spain  and  Portugal  on  the 
side  of  the  province  of  Santa  Cruz,  of  Brazil"  and  that  of  Lima, 
"on  the  North  by  the  Royal  Audiencia  of  Quito,  in  the  South  by  the 
one  of  La  Plata,  and  in  the  West  by  the  Pacific  Ocean  and  in  the 
East  by  undiscovered  countries."  (Lois  5  et  9,  tit.  15,  livre  II.) 

In  the  meantime  no  document  of  a  decisive  character  has  been 
presented  that  would  allow  to  place  these  undiscovered  provinces 
which  bounded  in  the  North  the  Audiencia  of  Charcas  and  in  the 
East  the  Audiencia  of  Lima,  that  could  authorize  to  extend  them, 
as  Peru  sustains,  from  the  Maranon  to  the  northern  frontier  of 
Paragua,  comprising  the  valley  of  the  river  Madre  de  Dios  (Re- 
ponse  du  Perou,  p.  102)  or  rather  as  Bolivia  asserts,  that  they  ex- 
tend along  the  shores  of  that  river,  when  it  says :  "The  only  vague 
point  which  exists  in  these  demarcations  consists  in  these  undis- 
covered provinces.  But  there  is  not  a  single  word  in  all  these  laws  on 
boundaries  which  even  makes  allusion  to  the  virtual  and  actual  dis- 
tricts. It  is  true,  that  between  the  Audiencias  of  New  Granada  and 
of  Quito  to  the  South  and  the  one  of  Lima  to  the  West  and  the  one 
of  Charcas  to*the  North,  there  remained  a  space  or  zone  of  lands 
which  were  called  the  undiscovered  provinces;  but  these  provinces 
which  according  to  all  probability  extended  along  the  borders  of  the 
river  Maranon  did  not  enter  within  the  limits  of  the  stated  Au- 
diencias. 

As  to  the  province  of  Chunchos,  known  later  on  under  the 
designation  of  Missions  of  Apolobamba,  nothing  authorizes  to  ad- 
mit that  it  comprised  the  whole  extension  of  the  concession  which, 
under  the  name  of  New  Andalusia,  was  granted  to  Alvarez  Mal- 
donado  in  1568  and  1569  and  much  less  still  that  it  extended  toward 
the  North  as  far  as  the  line  of  the  treaty  of  St.  Ildefonso  of  1777, 
which  extended  from  the  sources  of  the  Yavari  to  a  point  at  equal 

16 


distance  of  the  confluence  of  the  Madera  with  the  Mamore  and  the 
Maranon. 

Considering  that  the  same  thing  takes  place  in  regard  to  the 
boundary  of  the  said  Audiencia  of  Charcas  with  the  Atlantic  Ocean 
and  the  demarcation  line  between  the  crowns  of  Spain  and  Portu- 
gal and  the  inclusion  of  the  province  of  Chunchos  according  to  the 
said  Recopilacion  de  Leyes  de  Indias  since  even  without  taking  into 
account  that  the  criterium  of  the  demarcation  in  vigor  in  1810  had 
modified  that  of  this  compilation,  according  to  the  Ordinances  of 
Intendentes  of  1782  and  1803,  it  suffices  to  observe,  that,  at  the  time 
when  they  were  promulgated,  the  Audiencia  of  Charcas  could  not 
confine  with  the  Atlantic  Ocean  as  well  in  the  region  of  Para,  West 
of  the  line  of  Tordecillas,  as  well  as  with  the  province  of  Rio  de  la 
Plata,  comprised  in  its  district. 

Considering  that  under  those  circumstances,  Clause  4  of  the 
treaty  which  stipulates  that 

"Whenever  the  acts  or  royal  dispositions  should  not  define  the 
dominion  of  a  territory  in  a  clear  way,  the  arbiter  shall  resolve  the 
question  equitably,  by  coming  as  close  as  possible  to  the  signification 
of  the  said  acts  or  dispositions  and  to  the  spirit  which  might  have 
inspired  them,"  becomes  applicable. 

Considering  the  signification  as  well  as  the  spirit  of  the  laws 
contained  in  the  "Recopilacion  de  Indias,"  of  the  royal  decrees  and 
orders,  ordinances  of  intendentes;  diplomatic  acts  relative  to  the 
demarcation  of  frontiers,  maps  and  official  descriptions  and  other 
documents  presented  by  the  High  Contracting  Parties  and  especially 
the  laws  1,  5,  and  9  of  title  15,  book  II  of  the  "Recopilacion  de 
Indias,"  relative  to  the  general  demarcation  of  the  Audiencias  and 
in  particular  of  those  of  Charcas  and  Lima,  law  3,  title  7,  book  I  of 
the  same  recopilacion  on  the  demarcation  of  the  bishoprics,  the 
royal  decrees  of  26th  of  August,  1573,  and  February  8,  1590,  rela- 
tive to  the  concession  made  to  Juan  Alvarez  Maldonado ;  the  royal 
decree  of  February  1,  1796,  which  severed  the  Intendencia  of  Puno 
from  the  viceroyalty  of  Buenos  Ayres  in  order  to  add  it  to  the  vice- 

17 


royalty  of  Lima;  the  negotiations  relative  to  the  formation  and  exe- 
cution of  treaties  of  limits  of  1750  and  1777  between  the  crowns  of 
Spain  and  Portugal ;  the  Ordinances  of  Intendentes  of  January  28, 
1782,  and  September  23,  1803;  the  documents  concerning  on  the 
one  hand  the  development  of  the  missions  of  Carabay  in  the  region 
of  San  Juan  del  Oro  or  Tambopata  and,  on  the  other,  development 
of  Apolobamba  and  Mojos  in  the  region  of  the  river  Toromanas. 

And,  in  accordance  to  the  considerations  that  precede,  /  must 
decide  this  question  equitably  and  conform  this  decision  as  much  as 
possible  to  the  meaning  of  the  royal  dispositions  invoked  by  the  re- 
spective defenses  and  to  the  spirit  ivhich  inspired  them. 

For  these  reasons,  in  accordance  with  the  advice  given  by  the 
assessorial  commission,  I  declare  that  the  line  of  boundaries  is  the 
following : 

Starting  from  the  place  where  the  actual  frontier  lines  coincides 
with  the  river  Suchez,  the  territorial  boundary  line  between  the  two 
Republics  will  cross  the  lake  of  the  same  name  as  far  as  the  moun- 
tain cerro  of  Palomani  Grande,  whence  it  will  continue  to  the 
lagunes  of  Yagua-Yagua  and  along  the  river  of  that  name  will 
reach  the  river  San  Juan  del  Oro  or  Tambopata.  It  will  follow  the 
course  of  this  river  Tambopata  as  far  as  to  meet  the  mouth  of  the 
river  Lanza  or  Mosohuaico.  From  the  confluence  of  the  Tambopata 
and  Lanza  the  line  will  run  as  far  as  the  western  extremity  of  the 
river  Abuyama  or  Heath  and  continue  along  the  latter  to  its  junc- 
ture with  the  Amarumayo  or  Madre  de  Dios.  By  following  the 
"Thalweg"  of  the  Madre  de  Dios  the  boundary  line  will  descend  to 
the  mouth  of  the  Toromanas,  its  tributary  on  the  right  bank.  From 
this  confluence  of  the  Toromanas  and  Madre  de  Dios  a  straight 
line  shall  be  drawn  to  the  intersection  of  the  river  Tahamanu  with 
the  69th  degree  longitude  West  of  Greenwich  and  following  this 
meridian  the  divisory  line  will  extend  toward  the  North  until  its 
meeting  with  the  limits  of  the  territorial  domain  of  another  nation 
that  has  not  been  party  to  the  arbitration  treaty  of  the  30th  of 
December,  1902. 

18 


The  territories  lying  to  the  East  and  South  of  the  boundary 
lines  just  established  pertain  to  the  Republic  of  Bolivia  and  the 
territories  lying  to  the  West  and  North  of  the  same  line  pertain  to 
the  Republic  of  Peru. 

This  arbitral  sentence  shall  be  brought  to  the  cognizance  of  the 
Envoys  Extraordinary  and  Ministers  Plenipotentiaries  of  the  High 
Contracting  Parties  to  whom  one  copy  be  given  according  to  terms 
of  Article  9  of  the  treaty  of  arbitration. 

Executed  in  three  copies,  sealed  with  the  big  seal,  with  the  arms 
of  the  Republic  and  countersigned  by  the  Minister  of  Foreign  Af- 
fairs, and  Cult  in  the  Palace  of  the  National  Government  in  the 
city  of  Buenos  Ayres,  capital  of  the  Republic  of  the  Argentine,  the 
ninth  of  July  One  Thousand  Nine  Hundred  and  Nine. 

J.  FIGUEROA  ALCORTA, 
V.  DE  LA  PLAZA. 

OBSERVATIONS 
ON    THE    ARBITRAL   SENTENCE 

Our  observations  taking  their  inspiration  from  the  general  in- 
terest in  the  better  functioning  of  arbitration,  we  will  in  the  first 
place  say  that  the  prevailing  custom  to  choose  as  arbiter  the  head 
of  a  State  does  not  seem  to  us  a  happy  choice.  This  custom  was 
adopted  in  former  times  when  the  object  of  arbitration  was  to 
resolve  conflicts  between  two  sovereigns.  These  naturally  en- 
trusted this  task  to  another  sovereign.  This  usage  has  continued 
through  the  Middle  Ages  and  has  prevailed  even  in  our  era.  It 
seems  to  us  that,  in  order  to  preserve  to  arbitration  its  true  charac- 
ter, namely,  that  of  an  exclusively  juristic  institution,  official  bodies 
like  the  Court  of  Arbitration  of  The  Hague,  the  Institute  of  Inter- 
national Law,  a  law  faculty  should  be  preferred,  or  the  task  should 
be  entrusted  to  eminent  jurists  enjoying  the  confidence  of  the  liti- 
gating parties.  We  do  not  wish  to  intimate  by  this  that  the  sov- 
ereigns should  be  systematically  excluded  from  arbitral  functions. 

19 


It  would  be  truly  abnormal  to  create  such  an  incapacity  or  to  limit 
the  autonomy  of  the  parties  in  their  faculty  to  select  as  arbiter  a 
king,  an  emperor  or  a  president  of  a  republic.  We  only  say  that 
the  choice  of  a  chief  of  State  cannot  be  considered  as  the  best. 

Indeed  even  if  it  were  not  in  this  capacity  that  a  chief  of  State 
assumes  the  functions  of  arbiter,  and  though  undoubtedly  he  will 
fulfill  his  mission  as  a  judge  with  scrupulous  impartiality,  it  cannot 
always  be  avoided  that  when  the  sentence  is  contrary  to  the  inter- 
ests of  one  of  the  parties  the  inconsiderate  manifestations  of  the 
people  of  the  country  to  which  the  sentence  is  unfavorable,  should 
attack  the  dignity  of  the  State  whose  sovereign  is  the  judge.  It  is 
in  reality  not  always  easy  for  the  inhabitants  of  the  two  litigating 
countries,  excited  by  national  interests,  to  distinguish  the  function 
of  judge  from  that  of  sovereign  united  in  the  same  personality.  In 
this  manner  the  criticisms  intended  for  the  sentence  may  attack  the 
dignity  of  the  head  of  State  and  a  conflict  originally  of  a  juristic 
character  may  be  transformed  into  a  conflict  of  a  political  nature. 
The  arbitration  having  for  its  object  the  consolidation  of  pacific 
relations  between  the  States  one  should,  therefore,  to  our  idea,  con- 
sider it  preferable  not  to  select  sovereigns  as  arbiters.  What  has 
happened  on  the  occasion  of  the  arbitral  sentence  rendered  by  the 
President  of  the  Argentine  Republic  demonstrates  this  fully.  We 
will  certainly  not  criticize  but  only  indicate  the  facts.  The  people 
of  Bolivia  allowed  themselves  to  be  driven  to  demonstrations  as 
noisy  as  they  were  inconsiderate  in  front  of  the  Argentine  Legation 
to  express  in  that  manner  very  improperly  their  resentment  and  the 
Bolivian  Government  was  obliged  to  check  this  popular  movement. 
Furthermore,  the  press  improperly  meddled  with  this  question  and 
the  people  continued  to  make  manifestations,  the  dignity  of  the 
two  Governments  was  fatally  compromised ;  the  conflict  of  an  emi- 
nently juristic  character  was  transformed  into  political  difficulty 
and  the  recall  of  the  respective  representatives  of  the  two  States 
confirmed  the  rupture  of  their  diplomatic  relations.  The  civilized 
world  was  painfully  shocked  thereby.  Even  a  declaration  of  war 

could  be  feared. 

20 


Admitted  in  principle  that  the  authority  of  sentences  has  to  be 
respected  religiously,  especially  when  arbitral  sentences  are  con- 
cerned where  it  is  absolutely  inconceivable  that  the  juristic  founda- 
tion of  these  decisions  might  be  the  object  to  popular  demonstra- 
tions: that  the  Bolivian  Government  has  done  all  in  its  power  to 
suppress  the  popular  manifestations,  while  we  abstain  absolutely 
from  judging  the  conduct  of  the  two  Governments,  we  limit  our- 
selves to  state  that,  what  has  occurred  must  constitute  a  lesson  ab- 
solutely demonstrative  for  the  future. 

The  whole  world  agrees  to  admit  that  the  sovereigns  desig- 
nated as  arbiters  conscientiously  fulfilled  their  mission  and  are 
sheltered  from  all  the  influences  which  could  have  impaired  their 
impartiality. 

Notwithstanding,  this  cannot  prevent  the  people,  excited  by 
their  passions,  to  suppose  that  diverse  influences  outside  of  strict 
justice,  might  have  determined  the  decision  of  the  arbiter.  It  is 
advisable  to  avoid  this  danger  by  abstaining  from  choosing  as 
arbiter  chiefs  of  States  and  to  submit  the  matter  in  litigation  to 
the  arbitral  Court  of  The  Hague. 

In  principle,  one  must  admit  that  international  conventions 
duly  concluded  must  have  between  the  parties  the  same  authority 
as  law,  and  that  therefore  one  must  consider  as  absolutely  obligatory 
and  reciprocal  the  fulfillment  of  engagements  taken  and  the  produc- 
tion of  effects  thereof  notwithstanding  the  prejudice  that  could 
result  therefrom. 

In  matters  of  private  interest  regulated  by  a  contract,  one  may 
admit  that  a  lesion  beyond  certain  limits  may  be  a  motive  for 
annulling  the  convention,  or  suspension  of  the  execution  of  the 
contract,  but  it  cannot  thus  be  regarding  international  treaties.  If 
a  State,  after  having  duly  concluded  an  international  convention, 
could  misconceive  its  compulsory  nature  and  refuse  the  strict  and 
faithful  execution  of  the  obligations  contracted  under  pretext  of 
lesion  of  its  interest,  one  would  thus  arrive  to  legitimize  under  an 
unjustifiable  pretext  the  non-observation  of  the  treaty. 

21 


Any  serious  government  'should  exactly  know  to  what  it  en- 
gages itself,  and  even,  had  it  imprudently  entered  into  a  compro- 
mise without  competent  knowledge,  it  could,  nevertheless,  not  fail 
to  acknowledge  the  obligatory  power  of  the  convention  and  of  its 
effects. 

We  have  thought  it  useful  to  recall  here  these  principles,  which 
must  serve  to  maintain  the  integrity  and  the  prestige  of  the  au- 
thority and  the  efficacy  of  the  arbitral  sentences.  Arbitration,  at 
our  present  time,  is  regarded  as  the  most  efficient  means  and  the 
most  rational  one  to  realize,  as  far  as  possible,  the  generous  and 
peaceful  aspirations  and  to  resolve  conflicts  when  it  could  not  have 
been  done  by  means  of  diplomacy.  Nevertheless,  one  must  not 
exaggerate  the  practical  importance  of  general  conventions  of  arbi- 
tration by  which  a  compromising  clause  is  stipulated  which  in 
reality  depends  effectively  upon  the  good  will  of  governments, 
What  is  really  efficient  in  this  matter  is  the  special  convention,  in 
other  words  the  compromise,  by  w7hich  the  litigating  parties  leave 
to  the  decision  of  the  arbiter  the  definitive  solution  of  the  difficulty 
which  has  arisen  between  them. 

To  the  compromise  one  must  apply  the  general  rule  that  this 
convention,  constituting  an  international  treaty,  must  be  reputed  as 
concluded  in  good  faith  and  that  the  same  must  be  the  case  with 
the  execution  of  the  arbitral  sentence  rendered  by  virtue  of  the 
same  agreement.  No  government  after  having  concluded  an 
arbitral  convention  by  which  the  arbiter  is  entrusted  with  the  solu- 
tion of  the  conflict  by  a  definitive  sentence  without  appeal,  can  later 
on  misconceive  the  authority  of  this  sentence  and  refuse  to  execute 
it  under  the  pretext  of  the  damages  that  might  accrue.  Arbitration 
would  be  deprived  from  all  efficacy. 

We  therefore  agree  with  the  authors  who  maintain  that  the 
arbitral  sentence,  duly  rendered,  must  have  the  authority  of  a  judg- 
ment, that  it  should  be,  in  principle,  executed  in  good  faith,  and 
that  in  the  absence,  in  the  compromise  of  all  reserve  for  the  revi- 
sion of  this  sentence,  it  shall  be  reputed  as  absolute  in  the  sense  that 

22 


the  rights  and  obligations  of  the  parties,  such  as  they  have  been 
determined  by  the  arbiter,  must  be  considered  as  definitively 
established. 

Whenever  the  fulfillment  of  the  obligations  imposed  by  the  sen- 
tence should  necessitate  the  authorization  of  the  legislative  power, 
or  the  adoption  of  certain  measures  on  the  part  of  the  same  power 
it  will  always  encumber  upon  the  favored  government  to  call  forth 
this  authorization  and  these  measures ;  and  its  international  respon- 
sibility could  not  be  excluded  but  in  the  case  when  it  would  have 
done  all  that  is  necessary  to  this  end.  All  that  regards  means  of 
execution  of  the  arbitral  sentence  must  needs  be  considered  as  be- 
longing to  the  domain  of  internal  public  law,  and  in  a  well  organ- 
ized State  it  could  not  be  admitted  that  an  arbitral  sentence  could 
be  made  illusory,  under  pretext  of  lack  of  authorization  of  the 
legislative  power.  When  the  parliament  of  a  constitutional  State 
has  approved  the  arbitral  convention,  it  is  self-evident  that  it  can- 
not misunderstand  the  authority  of  the  sentence  rendered  in  exe- 
cution of  the  compromise,  nor  refuse  to  fulfill  the  tasks  resulting 
from  that  sentence  by  rejecting  the  legislative  measures  proposed 
by  the  government  to  this  end. 

In  the  case  of  the  Alabama  submitted  to  the  arbitral  tribunal  of 
Geneva,  the  English  arbiter,  Cockburn,  refused  to  sign  the  arbitral 
sentence,  presenting  a  memorandum  to  justify  his  refusal.  He 
concluded  as  follows:  "Although  the  decision  of  the  tribunal,  to 
my  idea,  may  justify  my  objections,  I  hope,  nevertheless,  that  the 
English  people  will  receive  the  sentence  with  the  submission  and 
the  respect  due  to  the  sentence  of  a  tribunal  the  decision  of  which 
it  has  freely  consented  to  accept." 

In  exposing  those  principles  we  have  thought  to  justify  our 
opinion  based  upon  the  doctrine  of  the  most  esteemed  publicists, 
and  according  to  which  the  arbitral  sentence  duly  rendered,  must 
have  the  authority  of  a  judgment  and  must  be  considered  by  the 
parties  as  effective  to  insure  the  obligatory  observation  of  the  duties 
imposed  by  the  arbiter. 

23 


This  theory  concerns  the  sentence  legally  rendered.  But  can  it 
be  sufficient  that  someone  has  been  chosen  by  the  parties  as  arbiter 
with  the  duty  to  render  a  definitive  sentence  without  appeal  and 
that  he  should  have  rendered  it,  in  order  to  maintain  that  one  must 
attribute  to  such  a  decision  the  authority  of  the  judgment  that  the 
parties  should  execute  blindly? 

The  authors  maintain  on  principle  that,  in  order  that  every  act 
might  have  the  legal  force  which  is  attached  to  it,  it  should  bear 
the  characteristics  reputed  as  indispensable  or  essential  to  give  it  its 
juridic  value. 

The  absence  of  one  of  these  essential  characteristics  deprives 
the  action  of  its  proper  juridic  value,  renders  it  legally  null  and 
void  and  juridically  inefficacious,  through  the  application  of  the 
principle  quod  nulluni  est  nullum  producit  effect-urn. 

This  rule  wrhich  applies  to  acts  of  any  kind  must  also  be  applied 
to  the  arbitral  sentence.  This  sentence  cannot  exist  juridically  as 
such,  unless  it  bears  all  the  essential  characteristics  to  be  consid- 
ered as  a  sentence.  Nobody  would  dare  to  question  the  absolute 
authority  of  a  sentence  nor  refuse  to  it  the  authority  of  a  judgment. 
Status  enim  rei  publicae  inaximc  judicatis  rebus  continetnr. 
(Cicero,  For.  Sulla,  cap.  22:69.)  Nevertheless,  we  repeat  it,  in 
order  that  the  decision  should  have  absolute  authority,  it  is  necessary 
above  all  that  it  constitutes  a  sentence.  May  a  decision,  lacking 
the  essential  characteristics  for  being  considered  as  a  sentence,  be 
regarded  as  one? 

The  publicists  have  examined  which  are  the  substantial  or  es- 
sential points  required  to  give  the  arbitral  sentence  the  legal  power 
which  it  needs,  and  in  the  absence  of  which  it  must  be  considered 
as  null.  They  disagree  in  this  matter  but  this  is  not  the  place  to 
expose  the  different  theories  emitted  on  this  matter.  We  will  limit 
ourselves  to  say  that  all  the  authors  agree  to  maintain  that  there  is 
one  essential  characteristic  necessary  for  the  value  of  the  arbitral 
sentence,  and  in  the  absence  of  which  this  sentence  is  radically  null ; 
it  is  necessary  that  it  be  rendered  within  the  terms  of  the  agreement. 

24 


They  all   agree   on   this   point,   because   then  the   nullity    results 
ex  re  ipsa. 

It  must  indeed  be  admitted  that  the  arbiter  invested  with  juris- 
diction to  definitely  settle  the  controversy  started  between  the 
parties,  in  virtue  of  the  compromise  concluded  between  them, 
which  compromise  not  only  must  state  precisely  the  object  of  the 
litigation,  but  also  the  powers  of  the  arbiter,  and,  furthermore,  the 
conditions  the  parties  had  understood  to  establish  in  accordance 
with  what  concerns  the  procedure  and  execution  of  the  arbitral 
sentence.  Consequently,  it  is  the  arbitral  convention,  called  com- 
promise, which  forms  the  juridic  basis  of  the  jurisdiction  of  the 
arbiter  and  fixes  the  limits  of  his  power  as  a  judge.  It  establishes 
rigorously  what  the  arbiter  can  or  cannot  do  as  judge. 

The  result  therefrom  is  that  the  arbiter  must  always  be  inspired 
by  the  rule  of  Roman  law,  "Arbiter  nil  extra  compromissum  facer e 
potest."  This  rule  is  consecrated  in  the  following  fashion  by  the 
French  Court  of  Cassation  in  its  decision,  in  the  Mauny  affair, 
from  the  18th  of  January,  1842:  "In  the  matter  of  arbitration  or 
compromise,  the  compromise  is  the  only  essential  thing  to  consult 
in  order  to  decide  whether  the  arbiters  have  judged  without  power 
or  with  due  competency."  (Journal  du  Palais.) 

It  was  in  virtue  of  this  principle  that  when  that  Court  was 
invited  in  the  quality  of  arbiter,  to  settle  the  conflict  which  had 
arisen  between  the  French  Republic  and  that  of  Nicaragua,  it  deter- 
mined by  its  decision  of  the  25th  of  April,  1879,  that  it  accepted 
unanimously  this  mission  of  arbitration,  but  that  it  demanded  that 
the  French  Minister  of  Foreign  Affairs  should  come  to  an  agree- 
ment with  the  Representatives  of  Nicaragua  in  order  to  draw  up  a 
compromise  by  which  the  object  of  the  arbitration  and  the  extent 
of  the  powers  which  the  parties  intended  to  confer  upon  the  Court 
would  be  clearly  determined.  It  motivated  its  decision  as  follows : 
"It  is  important  as  much  for  the  guarantee  of  the  interests  involved 
in  the  controversy  as  well  as  for  the  fixity  of  the  sentence  that  is 
to  intervene,  that  the  powers  of  the  arbiter  be  exactly  and  rigor- 
ously precised." 

25 


It  is  indeed  self  understood  that  the  extent  and  limitation  of 
jurisdiction  of  the  arbiter  and  the  juridic  value  of  the  sentence  are 
entirely  dependent  of  the  powers  which  are  conferred  upon  him 
unanimously  just  as  they  are  determined  by  the  parties  themselves 
in  their  agreement.  Consequently,  the  parties  who  invest  the 
arbiter  with  the  power  to  declare  the  contested  right  and  to  termi- 
nate the  litigation  definitively  and  without  appeal  can,  in  complete 
autonomy,  establish  that  the  arbiter  must  base  his  decision  on  titles 
and  documents  specified  and  produced  by  one  and  the  other  of  the 
two  parties  and  that  he  must  observe  the  general  rules  of  inter- 
national law  or  the  principles  of  equity.  All  this  is  within  the 
domain  of  their  autonomy.  However,  if  the  parties  should  have 
fixed  expressly  the  powers  of  the  arbiter  and  had,  by  the  compro- 
mise conferred  upon  him  the  power  to  determine  as  judge  in  law 
in  virtue  of  the  legal  proof  resulting  from  documents,  precisely 
indicated,  could  the  arbiter,  in  case  the  legal  proof  founded  upon 
the  titles  were  not  complete  and  conclusive,  constitute  himself  as 
judge  in  equity  and  decide  the  question  according  to  his  conscience, 
if  this  power  had  not  been  conferred  upon  him  by  the  agreement? 

The  whole  question  in  this  matter  resumes  itself  in  the  follow- 
ing manner: 

Given,  in  principle,  that  the  arbiter,  nominated  by  the  parties, 
must  be  considered  as  invested  with  the  jurisdiction  to  decide  the 
litigation  in  virtue  of  the  compromise  concluded  by  it ; 

Given  that,  in  case  the  parties  have  expressly  determined  and 
circumscribed,  in  the  compromise,  the  powers  of  the  arbiter,  must 
he  be  considered  as  compelled  as  judge,  to  exercise  his  powers 
within  the  limits  and  within  the  terms  of  the  compromise  ? 

Given  that  the  parties  have  conferred  upon  the  arbiter  the 
power  to  judge  as  judge  in  law  (jues  de  derecho)  and  not  as  judge 
in  equity,  can  the  sentence  pronounced  by  the  President  of  the 
Argentine  Republic  be  considered  as  based  upon  the  compromise 
and  as  pronounced  within  the  limits  of  the  jurisdiction  which  were 
attributed  to  him? 

26 


Before  discussing  this  question  thoroughly,  we  hold  it  to  be 
useful  to  eliminate  an  error. 

It  is  incontestable  that  the  arbiter,  invested  with  the  jurisdiction 
to  resolve  the  controversy,  has  the  right  to  determine  its  own  com- 
petence. This  right  is  given  him  by  Article  73  of  the  convention  I, 
title  IV,  of  the  conference  of  The  Hague  of  1907.  It  must  be 
stated,  however,  that  this  rule  cannot  be  understood  in  the  sense 
that  the  arbiter,  while  determining  his  competence,  could  arrogate 
to  himself  a  power  which  finds  no  base  in  the  compromise,  only 
legal  title  of  his  jurisdiction.  To  determine  signifies  to  precise, 
to  circumscribe,  to  verify,  and  not  to  attribute  to  himself,  to  arro- 
gate to  himself  a  jurisdiction  which  does  not  belong  to  the  arbiter 
according  to  the  agreement. 

Such  would  be  the  case  with  an  arbiter,  who,  invested  with  the 
power  to  statuate  as  judge  in  law,  in  determining  his  own  jurisdic- 
tion would  transform  it  by  arrogating  to  himself  the  power  to  de- 
cide as  amicable  adjuster  or  as  judge  in  equity.  Being  given  that 
the  parties  had  clearly  determined,  in  the  agreement,  the  powers  of 
the  arbiter  if  in  the  exercise  of  these  powers  he  finds  it  impossible 
to  solve  the  conflict,  may  he  hold  himself  to  be  authorized  to  render 
a  final  sentence  to  put  an  end  to  the  difficulty,  and  may  he  under 
the  pretext  of  .determining  his  own  competency  transform  his 
powers  in  arrogating  to  himself  a  jurisdiction  not  based  upon  the 
compromise  ? 

We  cannot  admit  this  solution  according  to  the  true  principles 
of  international  law.  Having  thus  removed  all  equivocation  on 
this  point,  we  shall  try  to  ascertain  in  an  impartial  way  if  the  Presi- 
dent of  the  Argentine  Republic  has  exercised  his  arbitral  jurisdic- 
tion within  the  limits  of  the  agreement  and  what  shall  be  the  juridic 
value  of  his  sentence. 

The  High  Contracting  Parties  who  have  signed  the  arbitral 
convention  have  clearly  determined  the  powers  of  the  arbiter,  ac- 
cording to  the  terms  of  Article  1,  which  we  have  textually  cited 
above.  They  have  left  to  him  the  solution  of  the  question  regard- 

27 


ing  the  boundary  lines  between  the  Republics  of  Bolivia  and  Peru, 
conferring  upon  him  the  right  to  judge  in  his  capacity  as  arbiter 
in  juri. 

Which  were  the  legal  titles  on  which  the  arbiter  as  judge  in  law 
should  base  his  decision? 

They  were  thus  determined  in  limitation,  by  Article  3 : 

"The  laws  of  the  'Recopilacion  de  Indias'  the  royal  decrees  and 
orders,  the  Ordinances  of  Intendentes,  the  diplomatic  instruments, 
relating  to  the  delimitation  of  the  boundaries,  the  maps  and  official 
descriptions,  and,  in  general,  all  the  documents  of  an  official  char- 
acter, appropriate  for  fixing  the  true  meaning  and  the  execution  of 
the  royal  dispositions  aforesaid." 

The  mandate  to  judge  and  to  decide  as  legal  arbiter,  according 
to  the  titles  thus  specified,  was  accepted  without  reserve  by  the  note 
of  the  Minister  of  Foreign  Affairs  of  the  Argentine  Republic  dated 
July  15,  1904. 

We  acknowledge  that,  in  virtue  of  such  a  mandate,  it  must  have 
been  very  difficult  for  the  arbiter  to  render  the  sentence  by  basing 
upon  the  legal  titles  indicated  by  the  parties,  it  being  given  that,  as 
the  arbiter  indicates  it  in  his  considerations  that,  since  the  points 
in  question  are  colonial  entities,  subject  to  the  same  sovereign  to 
whom,  without  possible  opposition  the  whole  territory  belonged, 
this  sovereign  could  not  have  understood  to  establish  through  his 
acts,  precise  and  well  defined  territorial  demarcations.  We  must 
observe,  however,  that  this  just  consideration  by  the  arbiter,  who 
recognized  the  difficulty  to  statuate  as  judge  in  juri  ought  to  have 
induced  him  to  ask  of  the  parties  more  extended  powers  in  order  to 
pronounce  his  final  sentence  on  the  limitation  of  the  respective 
territories. 

This  is  what  the  Emperor  of  Russia  did  when  he  was  nomi- 
nated as  arbiter  to  settle  the  difficulty  between  France  and  the 
Netherlands  relative  to  the  boundaries  of  French  and  Dutch 
Guiana.  The  High  Contracting  Parties,  through  the  compromise 
of  29th  of  November,  1888,  had  determined  the  powers  of  the 

28 


arbiter,  giving  him  the  mission  to  decide  according  to  titles  and 
documents,  which  of  the  two  rivers  Awa  or  Tapanahin  should  be 
considered  as  forming  the  boundary  line  between  their  respective 
possessions.  The  Czar  would  not  accept  a  task  so  closely  circum- 
scribed because  he  feared  not  to  be  able  to  solve  the  question  by 
fixing  the  boundary  line  within  the  indicated  terms.  It  is  for  this 
reason  that  the  Dutch  Government  proposed  to  the  States  General 
of  the  Netherlands  to  extend  the  powers  of  the  arbiter  by  allowing 
him,  in  the  case  that  he,  according  to  titles  and  documents,  should 
not  have  been  able  to  indicate  as  dividing  line  one  or  the  other  of 
the  two  rivers  mentioned,  to  trace  this  line  in  any  other  way  which 
seemed  to  him  the  best  justified.  In  consequence  a  new  compromise 
was  agreed  upon  between  France  and  Holland  which  accorded  to 
the  arbiter  the  subsidiary  powers  indispensable  to  solve  the  diffi- 
culty, Alexander  II  then  accepted  the  arbitration  with  more  ex- 
tended jurisdiction  and  pronounced  his  sentence  the  13-25th 
May,  1891. 

The  President  of  the  Argentine  Republic  could  have  demanded, 
following  the  considerations  wisely  proposed  by  himself  in  his  sen- 
tence, a  subsidiary  power  of  the  parties  for  the  case  when  he  could 
not  solve  the  difficulty  as  judge  in  law  according  to  the  documents 
and  titles  specified  in  the  agreement.  Having  neglected  to  do  it 
there  is  reason  to  examine  whether  he  has  or  not  duly  exercised  the 
powers  conferred  upon  him  as  arbiter,  according  to  terms  of  the 
agreement,  which  he  had  accepted  without  reserve. 

As  we  have  already  stated,  His  Excellency,  President  Alcorta, 
had  nominated  a  consultative  commission  to  study  all  the  docu- 
ments which  should  serve  as  basis  for  his  sentence.  The  commis- 
sion, after  having  examined  the  titles  and  documents,  expressed  its 
opinion  in  the  communication  addressed  to  the  Minister  of  Foreign 
Affairs  which  is  reported  textually  above  and  which  terminates  in 
the  following  manner : 

"After  having  studied  the  written  allegations,  the  replies  and 
criticisms  of  the  Ministers  of  both  Republics  in  defense  of  their 

29 


respective  doctrines,  we  have  arrived  at  the  conclusion  that  the  laws 
of  the  Recopilacion  de  Indias,  the  royal  decrees,  the  Ordinances  of 
Intendentes,  the  diplomatic  documents  relative  to  the  demarcation 
of  boundaries,  and  in  general  the  documents  of  an  official  character 
produced  to  give  their  true  signification  and  execution  to  the  said 
royal  dispositions  do  not  determine  in  a  clear  and  precise  way  the 
dominion  of  the  disputed  territory. 

First  of  all  we  shall  call  attention  to,  that  the  compromise  of 
July  9,  1909,  recalled  the  general  convention  of  arbitration  con- 
cluded by  the  two  Republics  on  the  21st  of  November,  1901,  and 
that  Article  10  of  this  same  agreement  expressly  stipulated  that  this 
general  treaty  of  arbitration  should  be  applied  to  all  that  was  not 
limitatively  regulated  by  this  agreement,  and  that  therefore  the 
arbiter  could  not  be  dispensed  from  applying  the  stipulations  of  the 
treaty  of  1901.  Now  it  is  to  be  noted  that  in  this  treaty  of  1901  the 
following  special  dispositions  will  be  found : 

Art.  7. — "Upon  questions  bearing  a  technical  or  scientific  char- 
acter that  will  present  themselves  in  the  litigation,  the  arbiter  shall 
obligatorily  request  the  decision  of  the  Royal  Geographical  Society 
of  London  or  of  the  International  Geodetic  Institute  of  Berlin." 

It  was  without  question  not  in  the  power  of  the  arbiter  since  the 
commission  had  found  in  the  titles  no  certain  legal  proof  relating  to 
contested  territorial  possessions,  to  apply  or  not  to  the  Royal 
Geographical  Society  of  London.  Article  7  at  the  convention  of 
arbitration  imposed  upon  him  formally  and  categorically  the 
obligation  to  consult  that  Society.  The  said  Society  might  perhaps 
have  been  able  to  find  in  the  official  documents  sufficient  legal  proofs 
to  establish  the  respective  legal  right  of  the  parties  to  the  contested 
territories,  or  else  she  could  have  found  in  those  same  documents, 
interpreting  them  according  to  their  meaning,  sufficient  motives  to 
determine  rights  that  could  not  be  considered  by  the  terms  of  the 
said  documents.  Undoubtedly  the  arbiter  has  neglected  to  con- 
sult this  Society,  although  he  was  bound  to  do  so. 

If  the  Royal  Geographical  Society  of  London  or  the  Interna- 

30 


tional  Geodetic  Institute  of  Berlin  had  not  been  able  to  throw  any 
light  on  the  matter  of  determining  the  question  of  limits  of  the  con- 
tested territory  according  to  official  documents  and  would  therefore 
have  confirmed  the  conclusions  of  the  consultative  commission,  then 
the  arbiter,  not  being  able  to  decide  the  contest  as  judge  in  law,  by 
basing  himself  upon  the  indicated  titles  in  the  agreement  would 
have  had  to  either  insist  to  statuate  by  demanding  subsidiary  powers 
of  the  parties,  or  then  limit  himself  to  pronounce  the  non  liquet. 

Indeed  the  arbiter,  not  being  permitted  to  exercise  his  power 
beyond  the  limits  of  the  agreement  and  unable  to  judge  definitively 
the  case  by  exercising  his  powers  as  judex  juris,  could  not  arrogate 
to  himself  a  jurisdiction  not  attributed  to  him  by  the  agreement  for 
pronouncing  a  sentence  based  upon  other  elements  of  proof. 

In  choosing  him,  what  did  the  parties  want? 

They  wanted  of  him  that  in  his  quality  of  judge  in  law  he  should 
decide  which  were  the  territories  pertaining  to  each  of  them  accord- 
ing to  the  terms  of  the  titles  indicated  and  specified  in  the  agree- 
ment, being  given  that  this  arbiter  after  investigation  by  the  consul- 
tative commission  and  the  interpellation  of  the  Societies  of  London 
and  Berlin,  had  not  found,  in  the  official  documents  the  juridic 
proof  of  the  respective  rights  of  the  parties  to  the  territory  in  con- 
test, could  he,  if  he  wanted  to  exercise  the  powers  held  by  him  by 
the  agreement,  do  anything  else  than  to  pronounce  the  non  liquet? 

On  the  contrary  the  consultative  commission  was  of  the  opinion 
that  the  arbiter,  according  to  the  terms  of  Article  9,  could  decide 
the  controversy  as  judge  in  equity,  and  the  President  of  the  Argen- 
tine Republic  admitted  in  interpreting  his  own  competence,  that  he 
could  statuate  as  judge  in  equity.  It  is  thus  that  in  his  sentence  he 
traced  the  boundary  line  according  to  his  conscience  and  in  con- 
formity to  the  conclusions  of  the  Peruvian  Plenipotentiary.  Never- 
theless, since  the  competence  which  he  thus  attributed  to  himself 
cannot  be  found  to  result  from  the  terms  of  the  agreement,  it  is 
clear  that  he  arrogated  to  himself  a  jurisdiction  which  did  not  be- 
long to  him. 

31 


If  the  agreement  had  really  attributed  to  the  arbiter  such  a 
power  his  decision  should  have  been  exempt  from  criticism,  in  what- 
ever manner  he  might  have  used  it.  It  could  not  have  been  pre- 
tended, actually,  that  he  had  not  judged  properly  because  he  would 
have  found  legal  proofs  insufficient  which  one  of  the  parties  consid- 
ered peremptory,  because  the  arbiter  ought  to  have  been  considered 
as  invested  with  the  jurisdiction  to  decide  the  controversy  in  equity, 
and  it  could  not  have  been  pretended  that  thus  deciding  according 
to  his  enlightened  conscience,  he  would  have  given  evidence  of  par- 
tiality, because  such  a  pretention  would  not  only  prove  injurious  to 
the  arbiter,  but  would  be  unsustainable  in  law.  The  arbiter  having 
been  appointed  by  mutual  consent  of  the  parties,  the  one  of  these 
parties  who  would  accuse  him  of  partiality  should  impute  to  itself 
the  deed  for  having  chosen  him. 

In  the  case  we  are  examining,  the  fundamental  argument 
against  the  sentence  is  that  the  arbiter  had  no  power  to  statuate  as 
judge  in  equity  and  that  by  doing  so,  he  arrogated  to  himself  a 
power  which,  did  not  belong  to  him. 

The  commission  has  thought  to  be  entitled  to  base  upon  the  text 
of  Article  4  of  the  agreement  in  order  to  conclude  that,  the  titles 
not  being  sufficient  to  establish  the  legal  proof  of  the  respective 
rights  of  the  parties  on  the  disputed  territories,  the  arbiter  could 
decide  the  question  as  judge  in  equity.  The  President  of  the  Ar- 
gentine Republic  who  naturally  thought  he  could  not  do  better  than 
to  adopt  the  advice  of  the  consulting  commission  which  he  had 
nominated,  and  considering  himself  as  invested  of  a  jurisdiction  in 
equity,  rendered  his  sentence  ex  equo  et  bono. 

We  really  do  not  know  how  the  commission  could  find  in  the 
agreement  legal  reasons  for  transforming  the  jurisdiction  of  the 
arbiter.  It  thought  to  be  entitled  to  invoke  Article  4  without  hav- 
ing well  informed  itself  of  the  exact  meaning  of  this  clause,  as  is 
shown  clearly  by  their  comparison  of  said  Article  with  Articles  1 
and  3  which  exclude  absolutely  the  power  to  decide  as  judge  in 
equity  in  what  concerns  the  disputed  territories. 

32 


What  did  the  parties  require  of  the  arbiter? 

Admitting  that  the  sovereign  decrees,  the  royal  decrees  and 
other  official  documents  indicated  in  Article  3  could  obtain  as  legal 
titles  of  their  respective  domination  on  the  contested  territories,  the 
parties  invested  their  arbiter  with  the  power  to  decide  in  the  quality 
of  judge  in  law  which  was  the  territory  belonging  to  each  one  of 
them  (Art.  1),  basing  his  decision  on  the  legal  proof  resulting  from 
the  titles.  They  did  not  suppose  that  those  titles  might  be  insuffi- 
cient to  establish  their  rights.  If  they  had  supposed  it,  and  wishing 
to  obtain  a  definitive  sentence  they  would  not  have  agreed  upon  an 
arbitration  "juris,"  but  upon  an  arbitration  in  equity.  The  intrinsic 
character  and  the  nature  of  the  arbitral  jurisdiction,  relative  to  the 
delimitation  of  the  territory,  not  being  established  in  the  agreement, 
we  are  undoubtedly  to  conclude  that  it  is  a  case  of  a  jurisdictio 
juris.  However  the  parties  have  stipulated  in  Article  4  that,  when- 
ever the  documents  and  royal  dispositions  should  not  define  in  a 
clear  and  precise  manner  the  domain  of  a  territory,  the  arbiter 
should  decide  regarding  this  special  territory  according  to  equity, 
inspiring  himself,  as  much  as  possible,  by  the  royal  dispositions  and 
the  spirit  which  dictated  them.  It  appears  to  us  as  evident  there- 
fore, that  by  interpreting  this  clause  of  Article  4  it  appears  that  the 
parties  did  not  wish  to  transform  the  substantial  character  of  the 
arbitral  jurisdiction  with  regard  to  all  of  the  disputed  territory,  but 
that  in  stipulating  regarding  the  disputed  territory  the  arbiter  should 
decide  in  his  quality  of  judge  in  law,  they  have  subsequently  ad- 
mitted that  in  case  the  royal  dispositions,  the  titles  and  documents 
should  not  constitute  sufficient  evidence  of  the  sovereignty  of  a 
territory,  then  the  arbiter,  in  this  exceptional  case,  could  decide  as 
judge  in  equity. 

If  the  parties  had  wished  to  confer  upon  the  arbiter  the  power  to 
decide  in  equity,  the  question  of  limits  in  its  whole  extent,  they 
would  have  expressed  themselves  in  the  following  way : 

"If  the  documents  and  royal  dispositions  did  not  define  the 
domain  of  the  territory  in  a  clear  way,  the  arbiter  will  decide  the 

33 


question  according  to  equity."  They  say  on  the  contrary:  "Siempre 
que  los  actos  6  disposiciones  reales  no  definan  el  dominio  de  un 
territorio  de  manera  clara,  el  arbitro  resolvera  la  cuestion  equita- 
tivamente."  Here  we  say  again  that  it  results,  as  well  from  the  literal 
text  of  the  clause,  as  from  its  likeness  to  the  articles  which  precede 
and  which  follow,  that  the  power  of  the  arbiter  to  act  as  judge  in 
equity  has  been  stipulated  for  an  exceptional  case  and  not  for  what 
concerns  the  delimitation  of  the  frontier  in  regard  to  which  the  ar- 
biter was  only  invested  with  the  power  to  statuate  as  judge  in  law. 

Furthermore,  what  indicates  well  that  Article  4  referred  to  an 
exceptional  case,  is  the  text  of  Article  5  which  is  thus  conceived : 
"The  possession  of  a  territory,  executed  by  one  of  the  contracting 
parties  shall  not  be  opposed  to,  nor  prevail  against  the  titles  or  royal 
dispositions  which  establish  the  contrary." 

By  this  clause  the  parties  have  agreed  that,  when  the  arbiter, 
judging  as  j-udex  juris,  found  titles  and  royal  dispositions  sufficient 
to  establish  the  rights  of  one  of  the  parties  to  a  disputed  territory, 
the  other  party  could  not  take  advantage  of  its  possession  of  this 
territory  to  contest  the  authority  of  these  titles  and  royal  enactments. 

It  appears  to  us  evident,  therefore,  that  the  clauses,  as  well  of 
Article  4  as  of  Article  5  refer  not  to  the  whole  of  the  contested 
territory  but  to  a  special  part  of  it. 

Therefrom  it  results  that  the  arbiter,  by  arrogating  to  himself 
the  power  of  deciding  as  judge  in  equity  concerning  the  whole  con- 
tested territory,  when  according  to  terms  of  the  agreement  he  was 
invested  solely  with  the  mission  to  statuate  as  judge  in  law,  has 
thus  arrogated  to  himself  a  jurisdiction  which  was  not  given  him 
by  the  parties. 

Can  the  sentence  pronounced  by  the  arbiter  be  considered  as 
valid,  when  he  has  arrogated  to  himself  a  jurisdiction  which  is  not 
based  upon  the  agreement? 

Calvo,  after  having  exposed  his  theory  on  the  legal  principles 
that  should  rule  international  arbitration,  puts  the  question  relative 

to  the  efficiency  of  the  arbitral  sentence  in  this  manner. 
, 

34 


"From  the  fact  that  arbitral  sentence  is  obligatory  without  ap- 
peal it  should  not  be  concluded  that  the  absolute  consequence  be  that 
the  parties  cannot  contest  it,  there  are,  on  the  contrary,  certain  cases 
when  they  are  plainly  authorized  to  refuse  to  accept  or  execute  it. 
These  cases  can  be  summarized  as  follows: 

1. — "If  the  sentence  has  been  pronounced  without  the  arbiters 
having  been  sufficiently  authorized,  or  if  it  has  been  statuated  out- 
side or  beyond  the  terms  of  the  agreement,  etc." 

The  authors  whom  we  cite  express  the  same  opinion.  Admit- 
ting that  the  essential  condition  of  the  efficiency  of  the  arbitral  sen- 
tence is,  that  the  arbiter  should  exercise  his  jurisdiction  within  the 
limits  of  the  agreement  they  naturally  refuse  all  legal  value  to  a 
sentence  rendered  outside  of  the  terms  of  the  agreement. 

Heffter,  p.  210,  says  the  following: 

"An  arbitral  sentence  is  subject  to  being  attacked  in  the  follow- 
ing cases : 

1. — "If  it  has  been  rendered  without  valid  compromise  or  out- 
side of  the  terms  of  the  compromise  *  *  *" 

Goldschmidt  says  on  his  part : 

(P.  32)  "The  arbitral  sentence  duly  pronounced  can  be  attacked 
and  annulled  *  *  *  if  the  arbitral  tribunal  has  exceeded  the 
limits  of  the  competence  which  the  compromise  gave  it"  (/or.  cit.). 

Merignac,  treating  of  the  causes  of  nullity  of  an  arbitral  sen- 
tence, indicates  in  the  first  place  the  excess  of  power  and  expresses 
himself  thus : 

"The  arbiters  can  commit  excesses  of  power  of  various  kinds. 
They  will  in  the  first  place  exceed  their  power  by  according  to  one 
party  more  than  the  compromise  will  allow  them.  *  *  *  They 
would,  on  the  other  hand,  exceed  their  powers  also  if  they  go 
beyond  the  faculties  attributed  to  them." 

Bluntschli  also  says : 
"The  decision  of  the  arbitral  tribunal  can  be  considered  as  null : 

(a) — "In  the  measure  in  which  the  arbitral  tribunal  has  ex- 
ceeded its  powers."  (Droit  international  codifie.) 

35 


Rivier  on  his  side  says  that : 

"The  State  against  whom  the  sentence  has  been  rendered  may 
have  just  reasons  to  refuse  its  execution  *  *  *  finally,  and  this 
is  most  frequently  the  case,  that  the  arbiter  has  exceeded  his  powers 
or  has  not  observed  the  prescriptions  of  the  compromise."  (Prin- 
cipes  du  Droit  des  Gens,  t.  II,  p.  185.) 

We  will  not  continue  our  quotations,  because  in  reality  the  com- 
munis  opinion  of  all  jurists  is  that  the  arbitral  sentence  has  no  value 
when  the  arbiter  has  not  observed  the  prescriptions  of  the  com- 
promise and  when  he  has  arrogated  to  himself  a  jurisdiction  which 
was  not  stipulated.  This  results  besides  from  the  general  principles 
of  law  and  the  nature  of  things. 

Nobody  can  assume  the  quality  of  judge  if  he  has  not  been  in- 
vested with  the  jurisdiction  to  judge  and  to  decide.  Ulpien  ex- 
presses himself  in  the  following  manner:  "Qui  judices  esse  non 
possunt."  He  says,  furthermore :  "Qui  neque  jurisdictioni  praeest, 
neque  a  principe  potestate  aliqua  praeditus  est  neque  ab  eo,  qui  jus 
dandorum  judicum  habet,  datut  est,  nee  ex  compromisso  smnptus: 
judex  esse  non  potuit."  (L.  81  Dig.  de  Judicis,  51.) 

Admitting,  therefore,  as  incontestable,  that  nobody  can  be  arbi- 
ter without  having  been  invested  with  the  jurisdiction  to  decide  the 
litigation  by  virtue  of  the  agreement  and  that  the  competence  of  the 
arbiter,  as  judge,  does  not  exist  except  within  the  limits  established 
by  the  agreement,  it  seems  to  us  evident,  according  to  the  reply  of 
Ulpien,  that  the  arbiter  who  has  arrogated  to  himself  the  compe- 
tence which  is  not  based  upon  the  agreement,  judex  esse  non  potuit. 

What  would  then  be  the  legal  value  of  the  sentence  rendered 
according  to  this  hypothesis? 

We  will  refer  to  the  wise  doctrine  of  the  Roman  jurisconsults 
who  have  taught  us  that  the  jurisdiction,  having  to  be  reputed  as  the 
substantial  condition  of  the  imperative  force  of  the  sentence,  nobody 
is  compelled  to  execute  a  sentence  pronounced  by  somebody  who 
has  not  the  legal  power,  or  rendered  outside  the  limits  of  the  juris- 
diction belonging  to  the  judge. 

36 


In  the  first  period  of  Roman  society  each  magistrate  had  the 
plentitude  of  his  imperative  power  in  the  province  or  district  sub- 
ject to  his  authority,  because  he  possessed  the  full  jurisdiction 
within  his  territorial  limits.  But  what  happened  after  he  had  exer- 
cised his  jurisdiction  (which  expired  at  the  boundary  line  .of  the 
province  or  district)  outside  the  territorial  limits  of  this  juris- 
diction ? 

Here  is  the  reply  on  this  subject  given  by  the  jurisconsult  Paul, 
Lib.  Ill  ad  Sabinum : 

"Praeses  provinciae  in  suae  provinciae  homines  tantum  im- 
perium  habet :  et  hoc,  clum  in  provincia  est :  nam  si  excesserit,  pri- 
vatus  est."  (L.  3  Dig:  de  officio  Presidis,  1-18.) 

What  was  the  consequence  of  an  authority  exercised  by  the 
governor  of  the  province  outside  the  boundaries  of  the  territory 
over  which  he  held  jurisdiction? 

The  jurisconsult  Paul  solves  the  question  in  Lib.  I  ad  Edictum : 

"Extra  territorium  jusdicenti  impune  non  paretur."  (L.  20 
Dig.  de  Jurisdictione,  2,  1.) 

Consequently  nobody  was  bound  to  obey  the  orders  of  the  mag- 
istrate who  exercised  his  functions  outside  of  the  limits  of  the  terri- 
tory over  which  he  had  the  jurisdiction. 

Posterior  to  that,  special  magistracies  were  instituted,  and  the 
power  of  each  one  of  these  found  its  limit  in  the  jurisdiction.  Ul- 
pien  said  that  who  had  no  jurisdiction  could  not  be  considered  as 
judge.  Paul,  on  his  side,  expresses  himself  in  the  following  manner 
on  the  subject:  "extra  territorium  jusdicenti  impune  non  paretur." 
Further  he  added:  "idem  est,  et  si  supra  jurisdictionem  suamvelit 
jus  clicere."  (L.  20  de  Jurisdictione.) 

One  was,  therefore,  not  compelled  to  consider  as  judiciary  sen- 
tence one  that  emanated  from  somebody  who  had  not  the  jurisdic- 
tion for  it. 

Taking  as  basis  the  doctrine  of  the  Roman  jurisconsults  and 
that  of  the  authors  whom  we  have  quoted  previously,  we  do  not 
hesitate  to  assert  that  legal  force  of  the  thing  judged  cannot  be 

37 


attributed  to  the  sentence  pronounced  by  an  arbiter  who  had  arro- 
gated to  himself  a  competence  not  given  him  by  the  agreement.  It 
is  incontestable  that  the  execution  of  such  a  sentence  cannot  be  im- 
posed upon  the  parties  since  the  obligatory  character  of  the  execu- 
tion of  an  arbitral  sentence  must  have  as  basis  the  obligatory  char- 
acter of  the  compromise  and  the  legal  force  of  the  sentence  rendered 
within  the  limits  of  this  same  compromise. 

Henceforth  the  decision  of  the  arbiter  could  have  the  character 
of  a  proposal  made  by  him  in  the  quality  of  amicable  adjuster  with 
the  laudable  purpose  to  put  an  end  to  the  controversy,  or  in  the 
quality  of  a  mediator  proposing  a  transaction.  However,  in  such  a 
case  it  would  be  necessary  for  the  arbiter  to  announce  his  intention, 
and  he  ought  never  to  consider  himself  offended  if  the  parties 
should  refuse  to  accept  and  execute  his  sentence,  every  time  that, 
for  the  reasons  we  have  just  stated,  the  character  of  an  executory 
sentence  could  not  be  attributed  to  his  decision  as  having  the  au- 
thority of  the  judgment. 

The  question  was  solved  with  reference  to  the  executory  force 
of  the  sentence  rendered  on  the  10th  of  May,  1831,  by  the  King  of 
the  Netherlands  who  had  been  chosen  arbiter  to  solve  the  pending 
difficulty  between  Great  Britain  and  the  United  States  of  America 
regarding  their  boundaries  of  the  Northeast.  In  that  case,  the 
arbiter  had  statuated  without  remaining  within  the  limits  of  the 
powers  which  had  been  conferred  upon  him  by  the.  compromise  and 
the  United  States  availed  themselves  of  this  reason  to  refuse  to 
execute  the  sentence. 

The  reasons  invoked  were  exposed  at  length  in  the  thorough 
report  of  the  legislative  commission  of  the  State  of  Maine,  which 
was  composed  of  four  Senators  and  of  seven  members  of  the  Legis- 
lature. The  commission  concluded  that  the  arbitral  sentence  could 
not  be  considered  as  obligatory  because  while  the  arbiter  had  been 
asked  to  judge  and  decide  according  to  the  titles  and  documents  he, 
on  the  contrary,  had  eliminated  them  and  had  not  attained  himself 
to  the  conditions  fixed  in  the  compromise. 

38 


In  the  arbitral  convention  concluded  by  the  parties  on  the  20th 
of  September,  1827,  it  had  thus  been  stipulated  in  Article  7:  "The 
decision  of  the  arbiter  once  given  shall  be  held  as  final  and  definitive 
and  shall  be  put  in  execution  without  reserve  by  the  commissioner 
appointed  to  this  purpose  by  the  contracting  parties."  Nevertheless, 
this  clause  did  not  prevent  the  United  States  from  considering  the 
sentence  as  not  susceptible  of  execution  in  consequence  of  the  just 
motive  that  this  sentence  had  not  been  rendered  in  conformity  with 
the  prescriptions  of  the  agreement  which  determined  the  powers  of 
the  arbiter. 

Asser,  in  his  learned  observations  formulated  in  the  doctrinal 
note  which  he  wrote  below  this  sentence,  expresses  himself  on  the 
subject  in  this  manner : 

"It  is  true  that  the  compromise,  foreseeing  that  the  arbiter 
would  have  to  terminate  the  conflict  in  a  final  manner,  could  appear 
to  have  given  him  all  the  necessary  powrers  to  enable  him  to  trace  the 
boundary  line :  this  was  at  least  the  reply  of  England  to  the  refusal 
of  execution  by  the  United  States.  But  this  reply  was  superficial 
and  hasty.  By  that  clause,  expressed  in  due  form,  the  parties  did 
not  mean  to  deprive  the  arbiter  of  the  right  to  pronounce  the  non 
llqitct  in  virtue  of  the  compromise,  but  simply  to  stipulate  that  the 
arbitral  sentence  should  be  final,  that  is,  without  appeal  and  decisive, 
that  is,  to  be  executed  immediately.  Now,  in  order  to  have  this 
double  character,  it  was  indispensable  that  this  sentence  be  in  con- 
formity with  the  compromise.  But,  in  order  to  be  in  conformity 
with  the  compromise,  it  was  necessary  that  the  sentence  be  rendered 
by  interpretation  and  in  execution  of  the  texts  which  precisely  King 
William  had  thought  to  be  able  to  reject."  (Loc.  cit.,  p.  300.) 

It  results  from  what  we  have  just  stated  that,  when  the  arbiter 
arrogated  to  himself  a  power  which  had  not  been  attributed  to  him 
by  the  terms  of  the  compromise,  his  sentence  cannot  have  the  same 
legal  value  as  the  decision  of  a  judge  who  has  judged  within  the 
limits  of  his  competence. 

Now  we  propose  to  examine  if,  given  but  not  admitted,  that  the 

39 


President  of  the  Argentine  Republic  could  draw  the  boundaries  ac- 
cording to  equity,  he  has  exercised  his  power  in  conformity  with 
the  principles  of  international  law. 

In  the  general  treaty  of  arbitration  concluded  between  Bolivia 
and  Peru  on  the  21st  of  November,  1901,  which  is  recalled  in  the 
compromise  passed  between  the  two  States  on  the  30th  of  Decem- 
ber, 1902,  it  is  specified  in  Article  8 : 

"The  arbiter  shall  pronounce  in  strict  conformity  with  the  pre- 
scriptions of  international  law,  and,  in  the  question  of  limits  to 
the  American  principles  of  the  uti  possidetis  of  1810,  every  time 
when  the  convention,  to  which  Article  2  refers  (that  is  the  special 
compromise)  does  not  establish  the  application  of  special  rules,  or 
does  not  authorize  the  arbiter  to  pronounce  the  sentence  as  amicable 
adjuster." 

According  to  principles  of  international  law,  the  rule  of  uti 
posseditis,  of  1810,  admitted  for  the  territorial  delimitations  by  the 
American  States,  must  be  understood  in  its  exact  sense. 

The  colonial  possessions,  taken  as  a  whole  and  in  the  special 
parts  which  compose  them,  have  to  be  reputed  as  being  in  the  do- 
main of  the  State  to  which  the  colonies  belong.  Therefrom  it  re- 
sults that,  as  long  as  the  colonial  relation  persisted  regarding  the 
different  countries  of  America  \vhich  formed  the  Spanish  colonies, 
the  whole  colonial  territory  was  exclusively  in  the  domain  of  the 
sovereignty  to  which  it  belonged.  Therefore  the  Spanish  Sovereign 
could,  in  absolute  autonomy,  regulate  the  administrative  regime  of 
his  colonies,  institute  Captaincies  General,  Audiencias,  Residencias 
and  Viceroyalties ;  comprise  in  these  circumscriptions  such  and  such 
a  region  in  order  to  determine  the  territorial  circumscriptions  of 
the  jurisdictions;  and  decree  the  delimitation  of  these  circumscrip- 
tions the  uniting  or  separating  of  territories  in  virtue  of  right  of 
dominion  which  belonged  to  him  exclusively  on  his  colonial 
possessions. 

It  must  be  said,  however,  that  the  territorial  circumscriptions 
established  by  the  King  of  Spain,  in  order  to  provide  for  the  ad- 

40 


ministrative  regime  of  his  colonial  possessions,  did  not  have  the 
result  of  creating  true  rights  of  territorial  domination  for  the  bene- 
fit of  this  or  that  one  of  these  circumscriptions,  since  the  right  of 
domain  had  never  ceased  to  belong  to  the  King  of  Spain,  as  well 
on  the  whole  of  the  territory  as  on  each  one  of  the  countries  com- 
posing it.  The  real  question  of  right  of  territorial  domain  belong- 
ing to  this  or  that  of  the  American  Republics  was  created  when, 
in  the  wake  of  revolution  and  emancipation  of  these  countries  who 
in  the  beginning  were  Spanish  colonies  of  South  America,  they  con- 
stituted themselves  into  independent  States.  It  was  natural  that 
when  it  came  to  determine  and  to  delimitate  the  territories  belong- 
ing to  each  one  of  these  new  States,  the  administrative  circumscrip- 
tions had  to  be  taken  into  account  such  as  they  had  been  established 
by  the  King  of  Spain. 

It  could  indeed  not  be  overlooked  that  the  inhabitants  of  one  and 
the  same  administrative  circumscription  had  formed  an  actual  asso- 
ciation and  that  this  circumstance  had  established  among  them  cer- 
tain ties  of  affinity,  which  had  in  the  first  place  brought  about  their 
moral  union  and  which  afterwards  became  the  foundation  of  their 
political  union.  Henceforth  it  was  reasonable  to  admit  that  the 
delimitation  of  each  circumscription  as  soon  as  it  had  proclaimed 
its  independence,  had  to  serve  as  basis  for  the  delimitation  of  the 
territory  of  each  of  the  new  States  of  South  America.  From  this 
point  of  view,  the  colonial  regime  which  from  the  first  was  the 
historical  factor  of  the  different  administrative  organisms,  had 
naturally  to  be  considered  also  as  the  historical  factor  of  the  diverse 
political  organisms,  and  in  order  to  determine  the  territorial  delimi- 
tations of  the  confining  Republics,  observation  of  the  rules  of  pos- 
session at  the  time  when  these  Republics  were  constituted,  could 
not  be  dispensed  with. 

It  is  in  this  sense  that  the  rule  of  the  uti  possidetis  of  1810  ad- 
mitted by  the  American  States  as  principle  of  common  right  to 
draw  their  respective  boundaries  has  to  be  understood.  Peru  itself 
confirms  it  by  its  treaty  of  December  18,  1823,  when  it  was 

41 


in  conflict  with  Colombia  about  its  boundaries  with  that  State. 
It  must  be  said,  however,  by  taking  into  account  the  principles 
which  we  have  exposed  above,  that,  as  the  decrees,  the  royal  ordi- 
nances, the  acts  of  the  government,  the  official  maps,  could  not 
have  the  effect  of  establishing  in  an  absolute  manner  the  territorial 
domain,  these  documents  had  to  be  referred  to  in  taking  into  ac- 
count the  spirit  which  had  inspired  them  and  the  meaning  of  these 
acts  which  had  for  object  the  fixing  of  territorial  circumscriptions 
of  the  administrative  organic  unities. 

We  cannot  study  thoroughly,  in  order  to  appreciate  their  value, 
the  acts,  edicts,  the  royal  decrees  and  the  ordinances,  so  as  to  be 
able  to  decide  if  really  these  documents  did  not  furnish  positive  data 
of  fixing  the  limits  of  the  contested  territory.  There  is  no  doubt, 
as  we  have  indicated  above,  that  the  arbiter  has  omitted  to  do  what 
he  was  obliged  to,  that  is  to  allow  himself  to  be  enlightened  by  the 
Geographical  Society  of  London,  since  proof  with  the  aid  of  geo- 
graphical maps  was  mentioned  among  the  documents  by  which  the 
expert  had  to  inspire  himself  for  rendering  his  sentence. 

Now  we  will  examine  a  last  point,  that  is,  to  know  if,  it  even 
being  admitted  that  the  arbiter  had  not  been  able  to  find  any  de- 
cisive ground  to  statuate  by  application  of  the  rule  of  the  uti  possi- 
detis,  he  should  not  have  observed  the  general  principles  of  the  in- 
ternational law  to  draw  the  boundary  line  between  the  two  Re- 
publics ? 

Article  8  of  the  general  convention  of  arbitration  of  the  21st  of 
November,  1901,  imposed  upon  him  the  obligation  to  conform  him- 
self strictly  to  the  prescriptions  of  this  law. 

The  rules  of  international  law  always  applicable  to  arbitrations 
relating  to  delimitations  of  boundaries  are  the  following : 

"To  avoid  in  principle  an  unreasonable  and  noxious  severity, 
consisting  in  adhering  too  strongly  to  the  mathematical  line,  but  to 
trace  the  limits,  taking  into  account  territorial  irregularities,  com- 
mercial and  agricultural  exigencies  and  ways  of  communication : 

"To  even  rectify  the  lines  traced  by  nature,  when  this  is  neces- 

42 


sary  in  order  not  to  divide  up  a  complex  of  works,  and  to  subordi- 
nate the  tracing  of  the  boundary  to  the  temperaments  suggested  by 
the  exigencies  of  economy,  agriculture  and  industry  and  by  the 
considerations  of  equity." 

For  the  strict  observation  of  these  rules  a  journey  to  the  sites 
had  to  be  considered  as  indispensable.  Indeed  M.  Escalier,  Min- 
ister Plenipotentiary  of  Bolivia,  had  justly  requested  this  measure, 
but  the  arbiter  did  not  think  it  necessary  to  pay  attention  to  this 
request. 

Furthermore,  it  was  certainly  in  accordance  with  the  rules  of 
international  law  to  respect,  as  much  as  possible,  the  actual  pos- 
session. 

Indeed,  the  general  rule  applicable  in  this  matter  is  that  when 
the  boundaries  of  two  States  have  to  be  determined,  in  the  absence 
of  positive  titles  that  could  serve  as  basis  for  the  determination  of 
the  respective  rights  of  domain,  possession  must  be  regarded  as 
a  title. 

According  to  international  law,  such  an  importance  is  attributed 
to  the  effective  and  actual  possession  that  publicists  admit  that,  even 
when  a  territory  had  originally  been  taken  in  a  violent  and  unjust 
manner,  it  can,  nevertheless,  become  legitimized  by  time  as  a  matter 
of  fact  and  be  respected  as  such.  Consequently,  it  is  admitted  that 
we  must  consider  as  belonging  to  each  State  the  territory  and  its 
annexes  over  which  the  sovereignty  had  actually  exercised  its  emi- 
nent right  of  domain  during  a  reasonable  length  of  time  and  not- 
withstanding that  the  legitimacy  of  the  title  in  virtue  of  which  this 
possession  had  been  effected  could  be  assailed. 

Already  at  his  time  Grotius  maintained  that,  in  order  to  avoid 
interminable  conflicts  between  the  States,  it  had  to  be  admitted  that 
time  consolidated  everything  because  otherwise  interminable  diffi- 
culties would  exist  on  the  subject  of  boundaries  of  States. 

"A  very  great  inconvenience  appears  necessarily  to  be  the  con- 
sequence, that  is,  that  never  by  no  lapse  of  time  differences  about 
States  and  their  limits  can  be  extinguished  which,  not  only  is  capable 

43 


of  troubling  the  minds  of  many  and  to  incite  war,  but  even  is  con- 
trary to  the  common  sentiment  of  nations."  (Le  Droit  de  la 
Guerre,  liv.  II,  ch.  IV,  No.  1.  Traduit  par  Pradier  Fodere.) 

Philimore  teaches  the  same  doctrine. 

"It  is  only/'  says  he,  "by  allowing  to  time  the  virtue  of  oblit- 
erating injustice  and  to  create  right  that  the  sentiment  of  security 
can  be  consolidated  among  peoples  and  international  peace  insured." 
(International  Law,  p.  255  et  suiv.) 

Bluntschli  thus  attributes  to  possession  as  matter  of  fact  the 
faculty  of  eliminating  for  an  indefinite  length  of  time  all  discussion. 

"Even  if  it  can  be  proven  that  the  original  taking  possession  has 
been  accompanied  by  violence  and  has  taken  place  in  defiance  to 
law,  but  if,  on  the  other  hand,  the  peaceful  possession  lasts  since 
long  enough  that  the  stability  and  necessity  of  the  established  order 
of  things  be  recognized  by  the  population,  it  must  be  admitted  that 
the  de  facto  condition  brought  about  by  violence  has  been  trans- 
formed with  the  time  into  a  lawful  condition."  (Le  Droit  inter- 
national codifie,  p.  290.) 

We  have  admitted  this  same  doctrine  into  our  codified  inter- 
national law  formulating  it  in  rules  1074  and  1075  of  our  fourth 
edition;  our  rule  1076  is  thus  expressed: 

"The  action  on  the  part  of  a  third  power,  which  intends  to  attack 
the  right  of  the  one  who  is  in  actual  possession  cannot  be  considered 
as  capable  of  indefinite  execution.  A  limit  to  this  action  must  be 
admitted  considering  in  principle  that  time  validates  everything  and 
that  the  original  acquisition  cannot  be  submitted  to  a  discussion  of 
indefinite  length. 

"Actual  possession  maintained  and  prolonged  during  a  long 
period  of  years  shall  be  reputed  an  obstacle  to  the  admissibility  of 
the  action." 

These  principles  of  international  law  which,  in  a  general  way, 
should  be  applied  to  territorial  acquisitions,  realized  by  means  of 
prolonged  possession  lasting  a  considerable  length  of  time,  must 
undoubtedly  be  applied  in  order  to  determine  the  attribution  of  cer- 

44 


tain  parts  of  the  colonial  territory  which  are  at  the  present  time  in 
the  possession  of  one  or  the  other  of  the  American  Republics. 

In  this  matter,  the  application  of  the  rule  of  the  uti  possidetis 
imposes  itself  and  the  arbiter  could  not  neglect  to  apply  it,  when 
he  was  called  upon  to  statuate  according  to  principles  of  interna- 
tional law. 

The  taking  into  account  of  the  possession  should  not  have  been 
dispensed  with  should  the  conventional  clause  stipulated  by  the 
parties  in  Article  5  of  the  compromise  be  respected.  Indeed  the 
parties  by  this  enactment  had  agreed  that  the  possession  of  one  terri- 
tory, exercised  by  one  of  them,  could  not  be  opposed  to  or  made  to 
prevail  against  the  titles  and  royal  enactments  establishing  the  con- 
trary. Therefore,  that  clause  signified  that,  when  the  arbiter, 
basing  on  the  titles  and  royal  dispositions  had,  in  his  quality  as 
judex  juris  been  able  to  determine  which  were  the  respective  terri- 
tories belonging  to  Bolivia  and  to  Peru,  if  one  or  the  other  of  these 
parties  who  claimed  the  zone  of  the  contested  territory  had  found 
itself  in  possession  of  part  of  that  zone,  this  possession  could  not 
prevail  against  the  attribution  of  the  boundary  line  made  by  the 
arbiter  in  virtue  of  the  legal  titles. 

Now,  as  the  arbiter  had  not  found  positive  legal  titles,  by  virtue 
of  which  the  distribution  of  the  zone  of  contested  territory  could 
be  made,  and  had  decided  to  draw  the  boundary  line  according  to 
rules  of  equity,  it  was  his  duty  to  conform  himself  to  the  principles 
of  international  law  and  undoubtedly  he  could  not  abstain  from 
taking  into  account  the  possession;  and  he  certainly  could  not  refer 
to  the  clause  of  Article  5  of  the  compromise,  which  was  in  no  way 
applicable. 

The  arbiter  was  therefore  bound  to  respect,  at  the  very  least, 
the  possession  de  facto.  On  the  contrary,  in  virtue  of  the  arbitral 
sentence  Bolivia  has  been  despoiled,  to  the  advantage  of  Peru,  of 
certain  parts  of  territory,  of  which  it  had  realized  effective  occupa- 
tion, by  founding  there  industrial  establishments,  by  developing 
actively  commerce  and  agriculture,  and  by  establishing  military 

45 


garrisons  and  planting  there  the  indispensable  signs  of  possession. 
These  regions,  inhabited  by  Bolivians,  independently  of  royal  enact- 
ments and  dispositions,  formed  already  integral  part  of  Bolivian 
patrimony.  This  was  the  case  with  important  territories  situated 
on  the  banks  of  the  rivers  Acre,  Taguamanu,  Buyuyumanu,  Manu- 
ripo,  Madre  de  Dios  and  Tambopata.  To  regard  the  sentence  as 
valid  and  to  establish  the  division  of  the  contested  territory  in  ac- 
cordance with  the  line  drawn  by  the  arbiter,  possessions,  belonging 
indisputably  to  Bolivia  in  the  regions  occupied  by  it  before  the 
treaty  was  concluded,  would  have  to  be  attributed  to  Peru. 

Could,  perhaps,  the  decision  of  the  arbiter  be  justified,  when 
it  is  contrary  to  the  principles  of  international  law,  according  to 
which  the  possession  de  facto  achieved  in  an  effective  and  perma- 
nent manner  by  founding  military  and  industrial  establishments 
thereon  and  by  developing  agriculture,  must  be  considered  as  suffi- 
cient title  for  the  acquirement  of  territorial  sovereignty  ? 

We  pay  respectful  homage  to  His  Excellency  the  President  of 
the  Argentine  Republic,  whose  high  intelligence  and  moral  authority 
everybody  recognizes,  and  we  consider  it  as  above  discussion  that 
he  intended  to  fulfill  conscientiously  the  noble  mission  entrusted  to 
him,  in  tracing  the  disputed  frontier  between  Bolivia  and  Peru  and 
thus  contribute  to  consolidate  the  peace  between  these  nations. 
Nevertheless,  we  take  the  liberty  of  respectfully  observing  that  the 
sentence  prepared  by  the  competent  ocmmission  and  rendered  by 
him  (the  President)  to  solve  this  difficulty,  does  not  appear  to  us 
to  be  soundly  based  on  the  agreement  between  the  High  Contracting 
Parties. 

Naples,  May  14,  1910. 

PROF.  PASQUALE  FIORE, 
Member  of  the  Council  of  Diplomatic  Contention, 
Member  of  the  Institute  of  International  Law, 
Senator  of  the  Kingdom  of  Italy. 

Translated  by  Ch.  Antoine,  Doctor  at  Law, 
Member  of  the  Court  of  Appeals  of  Douai. 


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